Appeal restrictions for those accused of illegally file sharing

The Government is planning to restrict the grounds for appeal that will be given to alleged illegal file sharers under the process being developed by Ofcom.

As part of its obligations under the Digital Economy Act (DEA), the communications regulator must establish the independent appeals body that people can use if accused of illegal file sharing.

Ofcom has also been developing the code for the online copyright appeals process, which sets out what grounds people can use to appeal such as “the subscriber took reasonable steps to prevent other person infringing copyright”.

However a previous copy of Ofcom’s online copyright infringement appeals process seen by Computeractive included a more general right of appeal. The code stated that "The grounds set out in the Act are non-exhaustive and we reflected this in our drafted Code by including an option to appeal on 'any other reasonable ground'."

However the Department of Culture, Media and Sports (DCMS) has asked Ofcom to remove this option.

Quite what is meant by ‘any other reasonable grounds’ is not clear and neither Ofcom nor the DCMS would clarify the statement nor will they confirm the authenticity of the copy we have seen.

“We're not commenting other than confirming that the Government has asked us to remove something that had been added to the Code,” an Ofcom representative told us.

Although Ofcom added the option because it felt that as technologies and consumer behaviours evolve it would avoid future lengthy revisions of the code it said that “it is within the Government's remit to change the Code as it sees fit.”

Therefore it is not clear if it will be put back in and the DCMS said: “We are still examing the code and will not speculate on what will be in the final version”.
Under the Digital Economy Act (DEA) copyright holders will be able to report a suspected infringer to the suspect’s ISP. The ISP then sends out warning letters to this person.

The ISP must keep this data so it can provide an infringement list showing the copyright holder how many times a user has been notified about alleged copyright infringement. Persistent offenders could ultimately have their internet service suspended.

However they will be able to appeal any accusations by rights holders.Last month culture minister Ed Vaizey put a price on this, which will be £20 if they wished use this process. This reason for the charge is to deter people making what Mr Vaizey called ‘frivolous’ appeals. The sum will be refunded if a person wins their case.

Saskia Walzel, senior policy advocate at Consumer Focus said: "There are significant issues around how consumers can appeal against notifications. The requirement for bill payers to show that the alleged infringement did not happen on their internet connection is a particular concern.

"The Act does not explicitly say that bill payers can’t appeal notices on other grounds than those it sets out. It is important that Ofcom’s code provides certainty to consumers about their rights to appeal allegations by copyright owners. It should be clarified that bill payers are not liable for copyright infringement by others, unless they explicitly authorised the infringement."