Legal uncertainty for citizens and ISPs can be expected from the Ofcom's Code to implement the Digital Economy Act, which will bring in 3-strikes (now confirmed as 3)  measures to the UK.

The Ofcom Consultation on the Initial Obligations Code, which implements the Digital Economy Act, ended yesterday. According to sources in consumer groups, citizens organisations  and ISPs, the code  fails to support either users or ISPs, even under the weak provisions which are in the Act. In many instances, the UK regulator is accused of putting users and businesses in a legally uncertain position.

The Ofcom Initial Obligations Code, as it is called, is criticised because it:

• Fails to provide for sufficient standards of evidence for rights-holder allegations
• Places a burden of proof on the user which is even greater than that envisaged in the DE Act
• Appears to allow the rights-holders to retain users' private data  and to share it  among them
• Places an unacceptable level of liability onto anyone operating public wifi, to the point where they would be forced to close down
• Creates an unacceptable level of legal uncertainty for small ISPs in respect of whether they would be drawn into the code, and for large ISPs in respect of the volumes that they will have to deal with

In particular, it clarifies the position on the ‘3-strikes'. Where the previous government, and Ofcom, have tried to deny that this is about ‘three' strikes measures, we can see clearly in the Initial Obligations Code that Ofcom proposes to put users in line for sanctions after their ISP has sent them 3 notifications. 

On the matter of wifi, Ofcom has been accused of ducking the issue. In the Initial Obligations Code, Ofcom  plays around with legal definitions, and suggest that some private wifi systems could be redefined as ISPs. However, what it does not address is the additional obligations that this might impose on those wifi operators, such as retention of users communications data.

Nor does the Code  address how it will differentiate between a wifi operator which will qualify as an ISP, and one which must remain defined as a ‘user'. Those which remain ‘users' will be liable under the 3-strikes rules.

The so-called appeals process is ill-defined and skewed towards the rights-holders. The nature of the body which will hear the appeals is not addressed,  and this is a very serious omission.  The ability of  users to issue a robust, workable and credible defence against rights-holder allegations is also not addressed.

What Ofcom has done, however, is thought about the costs of appeals, and limited the ability of users to obtain reimbursement of legal costs in the event that they  win an appeal against a rights-holder. Critics say that this  goes beyond the requirements of the DE Act, to the disadvantage  of users.

This appeals  body will ultimately have the power to punish citizens and businesses and to deprive them of fundamental rights under the law.   The Code  arguably demonstrates a  failure by Ofcom  in its duty to protect the interests of citizens, and in particular compliance with the requirements under EU law is questionable.

The policy question - in light of calls to repeal the Digital Economy Act -  is whether  the telecoms regulator is the appropriate institution to do this at all?

*Additional comment on the Digital Economy Act and Ofcom's Initial Obligations Code is available here from Consumer Focus via the Open Rights Group

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