Ofcom’s code does not comply with Digital Economy Act

The Open Rights Group will be asking Ofcom to start again as their Draft Code misses vital requirements to outline the standards of evidence. By omitting this information, Ofcom’s code fails to comply with the Digital Economy Act. Ofcom’s consultation closes on Friday 30 July.

The Draft “Initial Obligations Code” governs the way that copyright owners send accusations of copyright infringement to Internet users under the Digital Economy Act. In some cases, this will lead to individuals being taken to court.

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.

ORG would like to acknowledge Consumer Focus’ help in detailing the areas of non-compliance with the Act.

Detail on non-compliance

Copyright owners evidence Section 7/124E(2) of the DEA requires that the initial obligations code makes the required provision about CIRs by specifying “requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report”, and “the standard of evidence that must be included”. The draft initial obligations code makes no provisions specifying the means of obtaining evidence of infringement of copyright for inclusion, and neither does it make provisions specifying the standard of evidence that must be included.

Section 3.5 to 3.7 of the draft initial obligations code outlines, in relation to evidence gathering process what it calls a “quality assurance process” but this process does not specify the means of obtaining evidence or the standard of evidence included, only that the copyright owner will have to follow the process outline in their quality assurance report which is to be submitted to Ofcom. The DEA does not require such a quality assurance system.

ISP evidence: Section 7/124E(3) of the DEA requires that the initial obligations code create provisions covering the notification of subscribers for whom the internet service provider receives one or more CIRs. These provisions include “requirements as to the means by which the internet service provider identifies the subscriber”.

In contrast, the quality assurance process outlined in Section 4 of the draft code does not make “requirements as to the means by which the internet service provider identifies the subscriber”, but instead only requires that the qualifying ISP complies with the process outlined in their own quality assurance report.

The DEA requires that Ofcom’s code sets a threshold of notifications made to a subscriber in relation to a copyright owner (Section 7/124E(1)(c), in order that they are a ‘relevant’ subscriber whose details may be offered after a court order to the copyright owner. The code instead offers a scheme by which, after three notifications from the ISP, they are placed on a list (of “repeated infringers”). So the code sets a threshold for determining “relevant subscribers” in relation to notifications sent by ISPs and not CIRs received by ISPs. This does not comply with the DEA.

The draft initial obligations code fails to standardise information to be given to subscribers. The DEA requires the following information “about subscriber appeals and the grounds on which they may be made” to be standardised:

“information about copyright and its purpose”

“advice, or information enabling the Subscriber to obtain advice, about how to obtain lawful access to copyright works”

“advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use“.

The draft initial obligations code also incorrectly requires all notifications to include information about:

“the ability of a Qualifying Copyright Owner to bring a legal action for damages in relation to an infringement”.

This is not a requirement of the DEA. It is also factually incorrect. A copyrights owner can bring an action against a subscriber for infringement, and in some circumstances, if found guilty, the court may award damages. Unlike the DEA provisions, an infringement action would be required to link the infringement to the subscriber.

In a similar vein, the draft code requires that “advice, or information enabling the Subscriber to obtain advice, about reasonable steps that the Subscriber can take to protect an internet access service from unauthorised use” be given, in line with the DEA, but goes on to require information be given as to how to:

“prevent online copyright infringement in the future”

– an impossible task. The DEA more realistically requires “advice on securing internet access services against unauthorised use”.

We would like these elements to be properly corrected so that we can consider the content of notifications properly. 

The Appeals process also contravenes the process set out the DEA.

Section 13/124K(3) and (6) of the DEA provides that the initial obligations code must provide that if a subscriber appeals on the grounds that “the apparent infringement to which the report relates was not an infringement of copyright” or “that the report does not relate to the subscriber’s IP address at the time of the apparent infringement”, the appeal must be determined in favour of the subscriber if the subscriber shows that “the act constituting the apparent infringement to which the report relates was not done by the subscriber” and “the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service”.

The two relevant ground for appeals mentioned in the DEA are specified in Section 7.12.1 and 7.12.2. Overall the draft initial obligations code provides for five grounds of appeal in sections 7.12.1 to 7.12.5. In section 7.24 the draft initial obligations code then provides that “where a Subscriber Appeal contains a ground set out in paragraph 7.12.1, 7.12.2, 7.12.3, 7.12.4 or 7.12.5 a Subscriber Appeal must be determined in accordance with 7.22.1 if the Appeals Body is satisfied that the Subscriber has shown that, in relation to a relevant CIR: 7.24.1 the act constituting the apparent infringement to which the CIR relates was not done by the Subscriber, and 7.24.2 the Subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.”

It appears from the draft initial obligations code that an appeal on any grounds can only be upheld if the subscriber proves that “the act constituting the apparent infringement to which the report relates was not done by the subscriber” and “the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service”. The DEA only requires that the subscribers proves the above two cases where the appeal is in relation to either “the apparent infringement to which the report relates was not an infringement of copyright” or “that the report does not relate to the subscriber’s IP address at the time of the apparent infringement”. Hence the draft initial obligations code places a considerable burden of proof on the subscriber which is not required by the DEA.

Section 13/124K(5) of the DEA also requires that the initial obligations code “must provide that an appeal on any grounds must be determined in favour of the subscribers unless the copyright owner or internet service provider shows that…” “the apparent infringement was an infringement of copyright” and “the report relating to the subscriber’s IP address at the time of the infringement”. However the draft initial obligations code does not fully implement these DEA requirements. Section 7.23 of the draft initial obligations code states that “a Subscriber Appeal on any grounds may only be determined in accordance with paragraph 7.22.2 (must be rejected) if the Appeals Body is satisfied that there is sufficient evidence to show that, as respects any CIR to which the Subscriber Appeal relates or by reference to which anything to which the Subscriber Appeal relates was done (or, if there is more than one such CIR, as respects each of them): 7.23.1 the apparent infringement was an infringement of copyright, and 7.23.2 the CIR relates to the Subscriber’s IP address at the time of that infringement. “ In doing so the draft initial obligations fails to implement the clear requirement for an appeal on any ground to be determine din favour of the subscriber (that is upheld) unless the copyright owner or the internet service provider can prove that “the apparent infringement was an infringement of copyright” and “the report relating to the subscriber’s IP address at the time of the infringement”.

Section 13/124K(7) of the DEA also requires that “where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber”. In section 7.28 the draft initial obligations code states that the appeals body may only award such costs “unless it is satisfied that it would be unjust to give such direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.” This is not required by the DEA and it is unclear why the right of the subscribers to have reasonable cost reimbursed is limited in this way. It is also not clear what Ofcom has in mind in relation to the reimbursement being “unjust” a term that is not defined in law or the consultation document.