BT last week said that it wanted the operators of web video
services to pay it for the cost of maintaining networks powerful
enough to handle online video. It said that the BBC and Google
should pay it because of the popularity of their iPlayer and
YouTube services.
Other major ISPs are said also to be concerned at the
infrastructure costs involved in ensuring that subscribers can
watch video content, and the remarks raise the prospect of ISPs
slowing or even blocking subscribers' access to content from
operators which do not pay them.
OUT-LAW Radio investigated whether there was any legal barrier
in the UK to an ISP slowing or blocking access to video services
such as the iPlayer and found that there are none. As long as an
ISP explains its actions in its fair use policies or statements of
terms and conditions it is permitted to block whatever it
likes.
A spokeswoman for telecoms regulator Ofcom said that ISPs all
had to abide by its General Conditions, but that these did not
specify that all internet traffic had to be treated equally.
She said that there is a voluntary Code of Practice governing
the advertising of broadband speeds, but that this only demands
that ISPs inform customers of any traffic shaping or blocking that
it engages in.
She said that Ofcom had previously considered the issue of
whether such blocking or shaping for reasons other than network
management might be unfair to consumers but had not come to any
conclusion.
A lawyer at consumer protection body Which?'s legal division
also said that consumers would only have grounds for complaint if a
connection was interfered with without notification.
"The Supply of Goods and Services Act relates to their broadband
contract so basically there is an obligation there to provide the
service that was previously promised and as described," said
Stephen McGlade of Which? Legal Services. "If there is any
situation where the internet connection is reduced in some way
obviously one would have to look at the service contract, at the
terms and conditions, to see what it says in relation to that
service agreement."
"They could challenge it if they are deprived of being able to
look at this legal content, they could request an alteration to the
service and should be looking for some compensation," he said,
referring only to situations where an ISP does not give notice of
the change.
Major ISPs, though, are likely to put the change into their
terms and conditions. This would leave consumers no course of
action other than to accept the service limitation or leave the
ISP.
BT declined to comment, only saying that an executive's comments
to the Financial Times newspaper last week accurately reflected its
position.
“We can’t give the content providers a completely free ride and
continue to give customers the [service] they want at the price
they expect,” BT's managing director of the consumer business John
Petter told the paper.
A BBC spokesman told OUT-LAW Radio that it did not believe that
it should pay ISPs for the delivery of its content, and that the
iPlayer "only makes up a small percentage of total internet traffic
in the UK".
Which?'s McGlade said that a changed contract might lead to
action under the Unfair Terms in Consumer Contracts Regulations,
which say that any contract term which is unfair is
unenforceable.
Technology law expert Struan Robertson of Pinsent Masons, the
law firm behind OUT-LAW.COM, said, though, that it would only be
unfair under those regulations if consumers were forced to stay
with that ISP and accept the term.
"If people have the opportunity to just walk away and join
another provider I doubt there will be an issue," he said.
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