Consultation on Legislation to Address Illicit P2P File-Sharing – my response
Here is my response to the Department of Business Innovations and Skills Consultation on Legislation to Address Illicit P2P File-Sharing. My response concentrated on the proposal that Ofcom, an administrative body, should be able to bypass the judicial process. There are many other problems with the proposed legislation – I choose not to address these since there are plenty of people addressing these in their responses. In particular we can rely on the ISPs acting in their own self interest to respond to a certain class of problems.
Dear Mr Klym,
This email is a response to the consultation document “Consultation on legislation to address illicit peer-to-peer (P2P) file sharing”. From now on I will refer to this document as “the consultation document”.
I am responding as an individual. My name and address is:
I strongly disagree with the proposal to give “Ofcom power to impose other obligations” as outlined in paragraph 4.23.
There are number of reasons this power should not be granted.
i) The consultation document itself recognises that this power is contentious. Paragraph 4.23 states “this element of the proposal is new and will be contentious”. Indeed it is so contentious that the consultation document recommends, in paragraph 4.27, that this power is “subject to annulment by resolution of either House of Parliament” to “ensure that the power cannot be used frivolously”.
ii) The power has been rejected elsewhere. In France (see paragraph 3.19), the French Constitutional Council “ruled that the decision to suspend internet connections of digital pirates should be made by the courts as opposed to an administrative body”.
Furthermore the European Parliament has passed an amendment to the Telecoms Package that states that judicial ruling is required to impose restrictions on end-users (see paragraph 3.20). What’s more the European Parliament stated that this was in “accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information”. So if the government passed a bill that allowed Ofcom power to impose other obligations it would do so in the knowledge that the bill was in contradiction to European law, and that any challenge to that bill taken to the European Court of Human Rights would be likely to succeed.
iii) Industry itself has stated that taking legal action is “having a clear effect”. See page 18 of “IFPI:07 Digital music report” at http://www.ifpi.org/content/library/digital-music-report-2007.pdf (a document cited in the consultation):
“Surveys on levels of illegal file-sharing across different countries show that legal actions are having a clear effect. Studies also show that fear of legal action is an important factor driving consumers away from unauthorised P2P. In the US lawsuits were the most cited reason among internet households for changing from unauthorised P2P to legal downloading”
iv) I’ve save the most important reason for last: the consultation document is proposing to give extrajudicial punishment powers to Ofcom. This shows an unwarranted lack of faith in the judicial system. What’s more, even if the judicial system were deficient, the correct response would be to fix the deficiencies in the judicial system, not to bypass it.
Let’s look at the proposal in a little more detail:
“It is entirely possible that the obligations on notification and collection of anonymised information on repeat infringers that may lead to legal actions taken by rights holders that we set out here will not, by themselves, deter some infringers.”
In other words someone who breaks the law, and is punished by due process of law, may continue to re-offend. Well, this is true of any criminal offence, and the legal system has means to deal with it: a judge takes previous convictions into account when passing sentence. In the context of peer to peer file sharing this means, in the case of re-offenders, that a judge should be able to order ISPs to impose technical measures such as blocking, bandwidth shaping and filtering. It does not mean that the Ofcom should be able to bypass the judicial process and directly require ISPs to impose these technical measures.