UK plan to disconnect file-sharers might be made redundant by ECJ, says expert

Out-Law News | 25 Aug 2009 | 2:12 pm | 2 min. read

The Government's plan to cut off suspected file sharers from the internet might be rendered irrelevant by a ruling from Europe's top court, an intellectual property expert has said.

The Government has just published proposals to disconnect suspected file sharers from the internet without court oversight. But a case involving eBay may allow record labels to force internet service providers (ISPs) to police traffic more heavily without Government involvement, the expert said.

“In a case involving L’Oréal and Ebay the ECJ has been asked whether a UK court is entitled to grant an injunction against an intermediary to prevent the sale of illegal materials, even when the intermediary is entirely innocent," said Iain Connor, an intellectual property expert with Pinsent Masons, the law firm behind OUT-LAW.COM.

"If the ECJ says injunctions can be granted, in this case to prevent the sale of counterfeit cosmetics, the proposal in respect of ISPs may be irrelevant because right holders will simply obtain injunctions against ISPs to prevent unlawful file-sharing," he said.

The Government's new plan is a reversal of its previous policies on file-sharing. It has made the proposals halfway through a consultation on its Digital Britain report, which had rejected the plan.

The proposal would allow the Secretary of State to order media and telecoms regulator Ofcom to introduce 'technical measures', one of which is cutting users off.

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation," said the amendment to the consultation process. "This step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services," said the consultation, though it proposes no means for achieving that aim.

“The Digital Britain Report has struggled to balance the interests of rights holders, users and e-commerce service providers, such as ISPs," said Iain Connor, an intellectual property expert at Pinsent Masons, the law firm behind OUT-LAW.COM. "This is likely to be seen as a victory for rights holders and as a strong indicator that any agreement reached with ISPs for a voluntary code will not work."

The Government's previous plans involved internet service providers sending warning letters to customers believed to by illegally downloading and uploading songs and films and making traffic data available to rights holders on production of a court order. That data could then be used by rights holders in court cases.

Consumer rights activists have questioned the removal of such court oversight.

“The Government originally proposed to tackle illegal file sharing by sending warning letters and taking court action before technical measures can be imposed. This approach would be fairer, more proportionate and better respect consumer rights," said Larry Whitty, chairman of Consumer Focus. "Cutting people off the internet for allegedly infringing copyright is disproportionate. And to do so without giving consumers the right to challenge the evidence against them undermines fundamental rights to a fair trial."

 “It would be unfair to enforce this law in an area where millions of consumers are not clear on what is allowed and what is not. Unless a better solution can be found substantial elements of the population will be criminalised," he said.

Minister for digital Britain Stephen Timms said that the new plans were designed to speed up action against those accused of file sharing.

“Technology and consumer behaviour is fast-changing and it’s important that Ofcom has the flexibility to respond quickly to deal with unlawful file-sharing," he said. “We’ve been listening carefully to responses to the consultation this far, and it’s become clear there are widespread concerns that the plans as they stand could delay action, impacting unfairly upon rights holders."