Online downloaders face court action from entertainment industry under Ofcom proposals

Digital Economy Act returns to haunt ISPs

Ofcom has unveiled proposals for dealing with online file-sharers and copyright infringers that could see the most persistent offenders facing court action at the hands of content owners.

The proposals, issued as part of the 2010 Digital Economy Act (DEA), outline the ways in which internet service providers (ISPs) must contact customers accused of accessing illegal content and advise them of more legal methods of accessing such content, such as Spotify.

ISPs covered by the code include any firm with over 400,000 fixed-line customers, covering the likes of BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. This covers 93 per cent of the retail broadband market in the UK, according to Ofcom.

ISPs will have to send letters to customers informing them when their account is suspected of online copyright infringement, but letters must be sent at least one month apart.

If a customer receives three letters over a 12-month period, content owners can request more information on that account, although it must be anonymised to hide the individual. However, content owners can apply to the courts to have this information revealed if they wish to take legal action.

The draft code contains several amendments from the first set of proposals issued, including giving 20 working days for customers to appeal against any allegation of infringement and providing more detailed information on the offences customers are accused of.

The new code will now undergo review by the European Commission before being put before parliament at the end of 2012. If this all goes as planned the system should be in action by early 2014, although Ofcom will assess its effectiveness after the first six months.

Ofcom will review the criteria for applying the code to ISPs once the obligations have been up and running for six months.

At present, customer account suspension is not included in the code, as such measures could only be enacted once the code has been in force for 12 months, and after further legislation is passed by parliament granting this power.

Nevertheless, the draft proposals are unlikely to please online civil liberty groups or ISPs.

The appeals process was heavily criticised by Jim Killock, executive director of the Open Rights Group, who said it was not clear how courts could determine which individuals within a property were responsible, nor how ISPs could determine illegal downloading had taken place.

"Some people will almost certainly end up in court having done nothing wrong," he warned.

Both BT and TalkTalk campaigned hard for the DEA to be removed from the statute books by claiming it fell foul of European law, although their challenges were unsuccessful.