Activists claim Ofcom Code fails to implement Digital Economy Act

The Open Rights Group (ORG) has said that Ofcom's proposed Draft Initial Obligations Code is not in line with the demands of the Act. Ofcom said that it believes the Code does meet with the Act's requirements.

The Draft Code outlines the specifics governing the Act's demand that ISPs write to customers accused by record and film companies of copyright infringement. On the third such notification, the ISP's customer would be added to a list that can be accessed by copyright owners if they wish to bring lawsuits.

The Draft Code is currently the subject of a consultation and ORG said that it would ask Ofcom to rewrite it because it does not lay down explicit standards for the means of gathering evidence and the quality of the evidence against alleged infringers.

"Ofcom's proposal denies us the ability to check whether any of the evidence is trustworthy," said ORG executive director Jim Killock. "Instead, copyright holders and Internet Service Providers will just self-certify that everything's ok. If they get it wrong, there's no penalty."

The Digital Economy Act controversially was rushed through Parliament in the weeks before this year's general election. Section 7 of the Act outlines what the Code should say in relation to evidence against suspected copyright infringers.

The Act says that the Code should specify "requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report [and] the standard of evidence that must be included".

The Draft Code, though, does not outline the standards that should be followed by the agencies that gather evidence on alleged infringers.

"For the notification process to be credible, effective and fair for consumers it is essential that the allegations of copyright infringement are evidentially robust and accurate," said the Draft Code. "Therefore, we are proposing that a Copyright Owner (or an agent acting on their behalf) should, before submitting their first [Copyright Infringement Report] (and from then on an annual basis), provide Ofcom with a Quality Assurance report, which details the processes and systems used by the Copyright Owner (or any party acting on its behalf) to gather evidence [and the]  steps taken to ensure the integrity and accuracy of evidence."

ORG has said that the Draft Code appears to reverse the evidence burden, allowing copyright owners and their agencies to control the quality of evidence gathered rather than Ofcom.

"The Act requires the evidential standards to be defined - but Ofcom have passed the buck," said Killock. "How is anyone meant to trust this code if we can't see how the evidence is gathered or checked?"

The Act also says that the Code should specify "requirements as to the means by which the provider identifies the subscriber [and] requirements as to the form, contents and means of the notification in each case".

ORG claim that leaving this to copyright owners' own quality assurance reports is in breach of the Act's demands. It also said that the Draft Code fails to live up to the Act's requirements when it comes to the standardisation of information given to alleged infringers and the appeals process. It said that the appeals process imposed to heavy a burden of proof on the alleged infringer.

The Draft Code does not leave it up to copyright owners to police themselves, however. Though it allows them to propose their own guidelines for their behaviour, it will assess and monitor those.

"Copyright Owners must act on an Ofcom direction to take specified steps in relation to the maintenance or enhancement of the evidence gathering procedures," said the Draft Code. "We propose that Ofcom may require that systems and processes used to gather evidence be subject to audit by an appropriate independent party."

Ofcom said that it believes that the Code is compliant with the Act but that views such as those held by ORG are welcome as part of its consultation and could change the Code.

"Ofcom believes that the Code is consistent with what is required by the Digital Economy Act," said an Ofcom spokeswoman. "The consultation on the draft Code of Practice remains open until 30 July 2010.  We will consider all responses to the consultation.”

The spokeswoman said that any changes to the Code as a result of the consultation would be announced in September.