Mandy's farewell folly?

One of Peter Mandelson’s last acts as Business Secretary was to force the passage of the Digital Economy Bill. Rushed into law during the ‘wash-up’ period of the last parliament and backed by the Conservative opposition, it received only two hours of Commons debate. And while it’s too early to tell if it will confirm the old adage of ‘hasty law equals bad law’ the signs don’t look good.

As we blogged back in December, the big talking point is the bill’s crack down on copyright infringement and illegal downloading. With its avowed aim of protecting the British creative industries, it places the onus on Internet Service Providers to identify and reform miscreant downloaders. Customers that refuse to comply risk legal action from copyright owners and loss of internet access.

Not surprisingly, the ISPs remain frosty about their role as internet police. TalkTalk, the UK’s second largest ISP, recently condemned Ofcom’s new code of practice (instigated by the bill) as a ‘dog’s breakfast.’ Certainly the detail seems loaded in favour of the copyright owners, with millions of people at risk of being falsely accused of infringement, put on an ‘offenders’ register’ and potentially taken to court. And as yet, the code is unclear about the appeals process and whether innocent customers will have to pay to defend themselves.

Once again, there appears to be undue haste. Ofcom must conclude consultation on the code by the end of July with European Commission clearance required by early January. In the meantime, dissenting voices are gathering: Which?, Citizens Advice, the Open Rights Group and the Communications Consumer Panel have joined forces to produce a set of principles they hope will protect consumer rights within the code. These include:

• there should be sound evidence of wrongdoing before any action is taken against a consumer

• comprehensive and consistent information needs to be provided to all suspected repeat infringers and should be written in plain English

• consumers must have the right to defend themselves

• that an independent and transparent appeals process is essential, at no cost to the customer

Whether these principles influence the final detail of the code remains to be seen. But even if they do, there’s a good chance that the bill will be ineffective – or as Billy Bragg put it: “like trying to put toothpaste back in a tube.” Evidence against downloaders relies on the fact that, at present, most downloading systems don't bother to encrypt the traffic or disguise the user's identity. Although relatively expensive, neither of these things is very hard to do. And the costs keep coming down.

When non-anonymous, non-encrypted downloading begins to bear a significant risk, serial downloaders will simply switch to anonymous, encrypted alternatives. What’s more, the entertainment industry risks alienating some of its most avid customers – the 20% responsible for 80% of its total sales. Self-defeating in the extreme. 

For further information please contact Paula Morris. T: 029 2047 4401 E: p.morris@capitallaw.co.uk

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