Meeting with BIS

Yesterday, Florian and I met with BIS officials to discuss Ofcom’s draft ‘Initial Obligations Code’. As you’ll remember, we had a number of serious concerns about Ofcom’s code, including:

• standards of evidence for rights-holders: which are not properly defined, but instead are part of a ‘quality assurance’ scheme;
• identification of subscribers for ISPs: which again is not defined by the code, and is part of an ‘quality assurance’ scheme;
• standardisation of letters: which the Act is very clear about, setting out certain things that the Code must require of letters, but is missing or damaged in the draft code;
• appeals process: which is simply mangled;
• Future of WiFi: which everyone says they wish to protect, but will without doubt be discouraged under this code; and
• The lack of an economic and privacy impact assessments; which leaves us in substantial doubt as to the efficacy and proportionality of the scheme, as well as the true legality of the private mass monitoring which will be required.

ORG agreed to send BIS a short note outlining our top level concerns. Our overall view – and that of Consumer Focus – was that consulting on a substantially damaged code doesn’t really amount to proper consultation. We’re simply acting as proof-readers for Ofcom’s lawyers.

We discussed evidential methods in some detail. Our concerns are that the methods and standards of evidence are not defined in the Code, but Ofcom will argue to BIS that their Quality Assurance scheme does enough.

Ofcom’s current approach leaves some glaring questions: not least whether the methods and standards are set out publicly, or if rights holders would claim “commercial confidentiality”. We will come back to these questions on this blog at a later date.

BIS were able to give us some information about likely dates. Everything is falling behind schedule. The cost consultation will result in a ‘Statutory Instrument’ which will decide what portion of the scheme is paid by ISPs (ie, ends up on consumers’ bills) and whether Appellants will have to pay. We should have a public response by the end of this month. We won’t. This is holding Ofcom’s work in turn.

Additionally, the fact that TalkTalk and BT remain angry and opposed to the Bill’s implementation, and are contesting it via Judicial Review in the High Court, means that Ofcom cannot properly proceed with their work to get the Code implemented.

Government timetables are never quite as easy as they might seem, but these very tight deadlines, mandated by an Act that did not get proper scrutiny, are continuing to cause error and uncertainty, and failing to give proper reassurance about the effect on our fundamental rights.