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Out-Law News 2 min. read

File-sharer disconnection law published to continuing opposition

The Government has published the legislation which would force internet service providers to disconnect internet connections used by alleged file sharers without a court order. The Digital Economy Bill contains the controversial provisions.

"The Secretary of State may at any time by order impose a technical obligation on internet service providers," says the Bill. 'Technical measures' is the term used to denote action relating to a connection up to and including disconnection.

“Better protecting our creative communities from the threat of online infringement will ensure existing and emerging talent is rewarded and will bring new choices for online consumers," said Business Secretary Lord Mandelson.

The proposal does not contain the court oversight promised just last month by Culture Secretary Ben Bradshaw. He told MPs and Lords that "there would need to be a court order for any of the technical measures".

Connections will be terminated without the oversight of a judge or court, though. Users of any terminated connection will have to appeal if they object to the action. A body established by Ofcom will hear the appeals, though the legislation leaves that role open to non-Ofcom bodies if nominated by Government.

ISPs have opposed the plans, claiming that they undermine a person's right to be treated as innocent until proven guilty and that they will impose an administrative and financial burden on them.

Talk Talk has said that it will refuse to disconnect subscribers unless a court has ordered it to, and that it will defend its actions in court. BT has said that it has concerns about the proposed law and what it means for individuals' rights.

The Bill has been welcomed, though, by groups representing record labels and musicians, who have said that it will lay a basis for a sustainable UK music industry.

Digital activists have long opposed termination of connections used by accused illegal file-sharers because of the lack of court oversight involved in UK plans and also because of the damaging effect it will have on the other people who use that connection, such as other household members.

"People’s rights are at stake. The Bill doesn’t require any test of evidence before harsh punishments are imposed on people accused of copyright infringement, and opens the door to a ratcheting up of unwarranted powers without democratic scrutiny," said Jim Killock, executive director of digital rights lobby group the Open Rights Group. "There is a massive swell of action against this Bill, led by creators, citizens and people working in digital industries, who are outraged by this attempt to hijack our rights.”

The Digital Economy Bill largely implements the recommendations of the Digital Britain Report, itself the result of a long consultation process on how to help the UK's digital economy thrive.

That Report, though, did not recommend the termination of internet connections used by suspected illegal file sharers. That proposal was added later at the instigation of Lord Mandelson's Department for Business, Innovation and Skills.

The governing bodies of the European Union have agreed in principle a reform package of the EU laws governing the telecoms industry. The European Parliament had wanted a prohibition on countries passing laws that allowed for disconnection without a court order but it was advised by its own legal service that such a law was outside of the powers of the European Community.

It has been claimed that the reformed Telecoms Package would stop the UK passing the Digital Economy Bill, but intellectual property law specialist John MacKenzie of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the EU proposal would allow the Bill to become law.

"The Directive if passed will require a process to be followed before disconnection takes place," he said. "That gives Member States a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."

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