When the last UK Parliament rushed the Digital Economy Act into law without debate, hours before it dissolved for the election, it appointed Ofcom, the telcoms regulator, to work out the details. Specifically, it charged Ofcom with sorting out some high standards for what evidence a rightsholder would have to produce in order to finger an online infringer (the DEA gives these rightsholders the power to eventually disconnect entire families from the internet on the strength of these accusations).
Now Ofcom has abrogated its duty to the public and announced that the record and film industry can “self-regulate” their evidence-gathering procedures; in other words, anything that the MPA or BPI say counts as proof that you’ve violated copyright goes. Since these are the same companies that have mistakenly accused dead people, inanimate objects (laser printers), and people who don’t own computers of file-sharing, this doesn’t bode well.
What’s more, it’s not legal. The Open Rights Group and Consumer Focus have pointed out that the Digital Economy Act instructs Ofcom to come up with standards, not throw its hands up in the air and give the entertainment industry bullies the power to act as judge, jury and executioner.
Ofcom’s proposal denies us the ability to check whether the methods of collecting of the evidence are trustworthy. Instead, copyright holders and Internet Service Providers will just self-certify that everything’s ok. If they get it wrong, there’s no penalty.
The Act requires the evidential standards to be defined – but Ofcom are leaving this up the rights holders and ISPs to decide in the future. We ask, how is anyone meant to trust this code if we can’t see how the evidence is gathered or checked?
After all, only last week, we heard about people have been apparently wrongly sent accusations of downloading tracks by the Ministry of Sound. We know things go wrong, and that’s why the Act requires the evidential standards to be set out. What we need now is a new consultation on a new code, that is compliant with the Act.