A solution to P2P filesharing remains elusive
Published on 15 Feb 2010 at 11:07 am.
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Filed under Misc, illegal file sharing, HADOPI.
Blog Author: Tony Ballard
Illegal peer to peer filesharing continues to test the boundaries of the law. Now the European Court of Justice is to consider it, because the SABAM v Tiscali (Scarlet) case is being referred to it.
When in 2007 a Belgian court ordered Scarlet, an ISP, to filter traffic on its network to identify illegal P2P filesharing and then to block it, rights owners were pleased but ripples of concern spread through the European ISP community. As well as questioning whether the technology was available and who should pay for it, serious questions arose as to how to resolve the competing claims of (a) rights holders as to their intellectual property, (b) intermediaries as to their responsibility for traffic passing across their networks and (c) users as to their privacy. (more…)
Clause 17 of the Digital Economy Bill – should internet law be in the hands of Ministers?
Published on 19 Jan 2010 at 5:46 pm.
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Filed under Misc, Internet, Digital Britain, Copyright Infringement.
Blog Author: Tony Ballard
Those who are familiar with the Legislative and Regulatory Reform Act 2006 will not be entirely surprised by clause 17 of the Digital Economy Bill or the amendments to it that Lord Mandelson has proposed. They may, however, share some of the concerns that were expressed in 2006 about increasing the powers of Ministers and the erosion of Parliamentary functions.
The Legislative and Regulatory Reform Act controversially conferred on Ministers wide powers to legislate by statutory instrument to reduce legislative burdens (apart from tax) and to get regulators to comply with better regulation principles. It was described by some at the time as the Abolition of Parliament Bill. David (now Lord) Pannick QC wrote in the Times that it would confer astonishingly broad powers on Ministers to make the law of the land. In the face of such criticism, the government gave an undertaking that the Act would not be used to implement highly controversial reforms.
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Webcasters and mobisode providers face fees for the first time, or a fine
Published on 4 Dec 2009 at 11:11 am.
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Filed under Misc, Broadcasting, AVMS Directive, Internet, IPTV.
Blog Author: Tony Ballard
On 19 December 2009 the provision of television programme services on the internet or on mobile platforms without an Ofcom licence becomes an offence.
This is one of the lesser known consequences of the implementation of the AVMS Directive. Since 2003, when the Communications Act was enacted, webcasters and mobisode providers, and indeed anyone providing an internet service consisting of moving or still images or legible text produced to be seen on television, were exempted from content licensing thanks to subsection (3) of section 233 of the Act.
All that is now going to change on 19 December. The AVMS Regulations repeal that subsection with effect from that date and, by doing so, bring within the scope of Ofcom regulation a great swathe of internet and mobile services, all of which will need to a television licensable content service from Ofcom. The application fee is £2,500 and there are annual charges based on turnover thereafter, not to mention editorial and advertising standards to observe.
That this is not well known is attributable to a number of things, not least of which is the obscure drafting of section 233(3), which must be a contender for the title of worst drafted provision in English statutory law. In an Act which does not mention the internet once, the draftsman indulged in extraordinary contortions to produce an exemption for internet services without mentioning the word itself. The passing of this provision will not be mourned by those who favour clarity of expression in statutory language.
Against this background, the citizen might expect to be excused for having overlooked the extension of content regulation to the internet by the words in AVMS Regulations, which themselves are not exactly self-explanatory. The extension is achieved by the words: “In section 233 of the 2003 Act (services which are not television licensable content services), omit subsection (3).” The practical meaning and effect of these words do not exactly spring from the page.
The citizen might also expect to be excused if he or she had relied on Ofcom’s Guidance Notes for licence applicants, which still say (as at the time of writing, 4 December 2009) that internet services, including websites and web-casting, are excluded from the licensing requirement (paragraph 42 of the Guidance Notes).
As a matter of law the citizen will, of course, be disappointed to the extent that it is a matter of ignorance of the law. But where the law is expressed in terms as obscure as section 233(3), where its repeal is achieved by a few words buried without fanfare in an instrument aimed primarily at different services, and where the regulator’s guidance notes may be said to give rise to a reasonable expectation of exemption, those who are pursued for non-compliance after 19 December may have a serious grievance if they are pursued under the criminal provisions of the Broadcasting Act for provision of a licensable service without a licence.
Public service broadcasting and the Digital Economy Bill
Published on 25 Nov 2009 at 3:08 pm.
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Filed under Misc, Broadcasting, AVMS Directive, Digital Britain.
Blog Author: Tony Ballard
The Digital Economy Bill proposes a reformulation of the public service broadcasting principle.
Not so long ago, the Government spoke of digital television bringing about the end of television as broadcasting and the beginning of electronic communications as a seamless web which transcended the old distinctions between television, computer and the telephone. It foresaw a future where broadcasting regulation was based in the first instance on competition law with a reduced set of distinctive media rules added only where strictly necessary. The upshot was the Communications Act 2003, which withdrew almost all specific content regulation from the internet, and a campaign in Europe to limit the scope of the Audiovisual Media Services Directive.
The Audiovisual Media Services Regulations 2009
Published on 16 Nov 2009 at 4:20 pm.
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Filed under Misc, AVMS Directive.
Blog Author: Tony Ballard
“Would you tell me please,” said Alice, “what that means?”*
After lengthy consultations and the circulation to stakeholders of drafts, the Regulations implementing the AVMS Directive have been made and laid before Parliament. Unless Parliament intervenes, they will come into force on 19 December.
In one sense, the Regulations are a tour de force of Parliamentary drafting. The draftsman has applied Occam’s razor to the cumbersome prose of the earlier drafts, cutting verbosity, discarding anything not strictly to the point and presenting the new rules in plain English. Purely from a drafting point of view, they are a model of elegance. (more…)
Net neutrality is to be imposed on US ISPs under FCC proposals. Is there a judicial trend towards similar principles being imposed in Europe?
Published on 23 Sep 2009 at 4:36 pm.
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Filed under Misc, Broadband, Net Neutrality.
Net neutrality in the US
Last Monday (21 September), the new Chairman of the FCC announced proposals for applying principles of non-discrimination and transparency to companies that control access to the internet. Describing the rules that would implement these principles as not being about government regulation but about fair rules of the road for those companies, he saw them as consistent with the original architecture of the internet as an open system. He saw his task as being to ensure that every American had access to open and robust broadband.
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When are search engines liable?
Published on 18 Aug 2009 at 4:14 pm.
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Filed under Internet.
Blog Author: Cate Haywood
Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)
The High Court has set aside an Order to serve Google Inc out of the jurisdiction, on the basis that the defamation claim against it had no reasonable prospect of success. A reasonable prospect of success is a requirement of the Court Rules allowing service out of the jurisdiction.
Background and Facts
Metropolitan International Schools Ltd (”MIS”) is a distance learning course provider. It issued proceedings against Google UK, Google Inc and a third party website in respect of statements published on a web discussion forum which were alleged to be defamatory, in that they bore the meaning that MIS’ Train2Gain courses were a scam. Google searches on the product name produced the scam allegation as part of a snippet of information accompanying the hyperlink.
As Google Inc was domiciled in the US, permission to serve the claim out of the jurisdiction was obtained. Google Inc made applications to have the order for service out of the jurisdiction set aside and for a ruling that the Court should decline jurisdiction on grounds of public policy, abuse, non-publication, and defences under s. 1 Defamation Act 1996, regs 17 - 19 of the E-commerce Regulations 2002, and innocent dissemination at common law.
The Judgment
A key issue was whether Google Inc, the operator of the search engine, was a publisher at common law. If it was not, Google Inc argued, there was no reasonable prospect of succeeding in a claim and the order for service should be set aside.
Much turned on the way in which search engines like Google operate. There was evidence that Google Inc had no control over the search terms entered by users or over material placed on the web. Furthermore, the searching process was automated. With this in mind, Eady J took the view that Google Inc could not be characterised as a publisher at common law. It had “merely, by the provision of its search service, played the role of facilitator“.
The Judge noted that it was well established that a person can become liable for a publication of a libel by permitting it to continue when he has the power to prevent it doing so. However, he took the view that Google Inc was not in an analogous position to a website host as it could not ensure that the words would never reappear; they may be thrown up by a future search.
Google Inc had taken steps to block certain offending URLs once they were identified. He took the view that Google Inc should not be fixed with liability on the basis of authorisation, approval or acquiescence either, while efforts were being made to block offending URLs.
Other defences had been raised by Google Inc to support its contention that the claim had no reasonable prospect of success. These included a defence under s.1 Defamation Act 1996, the defence of innocent dissemination at common law and defences under the E-commerce Regulations 2002.
The Judge concluded that the defence of innocent dissemination at common law had not been abolished in 1996 but did not assist a defendant whose attention had been drawn to the defamatory content.
Further, if Google Inc had needed to rely on s.1 of the Defamation Act, it was difficult to see how it qualified for s.1 protection by relying on the fact that it had taken reasonable care in relation to the publication, because its process had no human input and was an automated one.
The UK Government had already taken the view that the protection of the E-commerce Regulations did not extend to search engines. Accordingly, the Judge held that statutory intervention would be needed before a search engine might be considered a webhost within Regulation 19 and thereby able to benefit from protection under the E-commerce Regulations.
On this basis, the Judge set aside the order for service. There was, in the Judge’s view, also a material misrepresentation on the application to serve out of the jurisdiction which justified the order being set aside.
Comment
This is the first time that the question of a search engine’s liability for defamation has been dealt with in the English Courts. The decision will be welcomed by search engine providers as it offers them some comfort.
While the Government has chosen not to expand the protection afforded by the E-Commerce Regulations to search engines, Eady J’s development of common law principles does offer some protection to search engine providers.
The judgment does not, however, offer absolute protection to search engine providers as the fact that Google Inc had taken active steps to block various URLs that it had been made aware of was particularly important in the case. On that basis, it is likely that a search engine provider would be expected to take similar steps to block URLs when notified of defamatory statements appearing in search results, even if they are unable to physically remove the offending material.
Liability of apps providers
Published on 10 Aug 2009 at 4:25 pm.
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Filed under Misc.
Blog Author: Mark Owen
Content is “sold” for the Kindle eBook reader over a private Amazon network, Whispernet. This is only available in the US. Publishers upload content to the network which Amazon then makes available. Warranties are given to Amazon by the publisher as to its right to do this.
Two George Orwell novels, 1984 and Animal Farm, were made available over Whispernet and copies were “purchased” by a number of Kindle users. It subsequently emerged that the publisher who had uploaded the content did not enjoy the necessary rights to do so. It is what happened next which is interesting. Rather than simply removing the books from the Kindle store and looking to the other party for compensation in the event that the real right-holder sued Amazon, Amazon went further and deleted the copies from the users’ Kindles.
Uproar followed and then a swift mea culpa from Jeff Bezos.
Much of this was caused by the manner of the deletion, with users apparently unaware what had happened and why and concerned that there was an invasion of privacy. Some were also unclear whether in fact all they had was a licence to the content rather than a permanent right. That issue is not a new one and lies at the heart of the private use debate, ie if you’ve bought a CD why can’t you also copy it onto your iPod. However, the episode raises interesting questions about the effects of new methods of distribution on service provider liability.
Amazon apparently took the view that because it had the technical ability to remove the content then it had to do so. Because of the nature of Whispernet, books remain on it even once they have been “acquired” by end users. If so then Amazon may be in exactly the same position as a host of a network containing unlawful content, and potentially liable for it.
What is also interesting is the potential for expansion of a service provider’s liability beyond situations where it is hosting unlawful content to those where it is no longer strictly speaking hosting the material but retains some ability to disable it, through digital rights management software, even after it has been distributed. This may have implications not just for Kindle/Whispernet but also app stores.
Project Canvas – what will be on the new platform and on what terms?
Published on 29 Jul 2009 at 2:24 pm.
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Filed under Misc, Project Canvas.
Blog Author: Tony Ballard
What is Project Canvas exactly? And on what terms do content providers have access to it? Prompted by complaints from some parts of the industry, the BBC Trust has now (23 July 2009) published some additional information.
One key point is that Project Canvas is very much a broadcaster’s response to the internet rather than vice versa. It will not have full internet browser functionality, as will apparently be made clear when members of the public buy a Canvas box. Instead, purchasers will be able to use it to access a number of services, very much like a Freeview box, except that in addition to the main Freeview channels they will also be able to access on-demand services such as the BBC iPlayer, the ITV Player, BT Vision and web applications such as flickr, facebook and YouTube (at least if they decide to come onto the platform). But there will be no general access to the web. A service provider’s content will be available on the platform if the service provider has subscribed to the platform’s electronic programme guide or EPG, but not otherwise. The point is that, like Freeview, it is a platform for service providers. It will be open to all of them, subject to certain detailed criteria which remain to be specified but which will relate to technical integration, the integrity of the platform (no bugs) and/or (sic) application of the laws of the land.
EPGs are gateways, as the BBC itself has remarked elsewhere (in relation to Sky’s EPG). They offer opportunities for anti-competitive behaviour and can be a “competitive bottleneck”, as Ofcom has put it. Control of an EPG by a vertically integrated operator hands to the operator a degree of influence over the likely success or failure of competing services. An EPG for television programme services is therefore regulated - both as a licensable content service and as an associated facility under Part 2 of the Communications Act. The provider of an EPG must not engage in any practice prejudicial to fair and effective competition and access must be provided on fair, reasonable and non-discriminatory (FRND) terms. But the law has not yet caught up with on-demand and other services – the EPG regime applies only to conventional broadcast services. It does not apply to on-demand programming or other web applications (nor will implementation of the AVMS Directive change things).
The BBC Trust tells us that all respondents to the initial Canvas consultation highlighted the importance of fair and reasonable access on the Canvas guide. The original proposal had not analysed this element because it was supposed that a common guide would be subject to Ofcom’s code, which requires fair, reasonable and non-discriminatory treatment of channels wishing to be placed on the guide. But of course that is true only of conventional television channels.
The FRND regime is not, in fact, a panacea anyway. It has not proved particularly effective in the past and, although better than nothing, this consultation might be an opportunity to consider a more muscular regime. There are indications in the additional information that has now been published that the BBC intends to apply the FRND regime across the board but they are (perhaps inadvertently) equivocal – a number of “business rules” are proposed but they do not address the fact that the existing regime applies only to conventional channels and it is expressly stated that the business rules will be intended primarily to comply with any “legal” obligations on Canvas, which would not include any obligation to apply the regime to on-demand and other services. There is no clear commitment to apply the FRND regime to those other services. This matters because it affects fundamentals such as access to the platform in the first place, prominence of positioning and what Canvas charges for the privilege of being included in the EPG.
It is quite clear that the EPG regime applies only to the conventional channels. If the touchstone for the Canvas is compliance with current law, it is not enough. The safeguards of current law do not extend into the on-demand and web application area and the Trust must fill the gap.
Remedies for illicit peer-to-peer file sharing: a conflict of fundamental rights
Published on 1 Jul 2009 at 5:05 pm.
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Filed under Misc, Digital Britain, illegal file sharing.
Blog Author: Tony Ballard
Nobody, least of all the government, expects that dealing with illegal peer to peer file sharing will be easy.
Digital Britain sensibly recognises that convenient access to legal content is as much part of the solution as putting new obligations on ISPs. It is looking to industry for the former and is designing legislation for the latter.
BIS, the Department for Business Innovation and Skills, in its 16 June consultation document on illicit p2p file-sharing, has set out details of the legislative proposals. They involve giving new powers and duties to Ofcom. If the initial measures to warn off illicit file sharers and gather information do not work, Ofcom will have powers to require their ISPs to take a variety of technical measures against them, from content filtering to blocking.
If blocking means denying a person access to the Internet, issues of freedom of expression may emerge as they have done in France, where a similar remedy (in the HADOPI law) was challenged on the ground that it infringed the free communication of thoughts and opinions enshrined in the 1789 Declaration of the rights of man and citizen. The Constitutional Court struck down part of the law but not because it was inimical to freedom of expression. It held that there was a balance to be struck between this and other fundamental rights, including the protection of property such as the rights of authors. What was unacceptable was that the power to deny a citizen access to the Internet should be conferred on a mere administrative authority (Conseil Constitutionnel, Decision no. 2009-580 of 10 June 2009).
This is not the first time that illicit file sharing has led the courts to declare a need to balance conflicting fundamental rights. In Productores de Música de España (Promusicae) v Telefónica de España SAU (Case C 275/06). the European Court of Justice had to consider an ISP’s refusal to disclose to rights holders the names and addresses of subscribers whose computers had been used for illicit file sharing on the ground that to disclose them would breach national data protection rules([2008] 2 CMLR 17). The Court took a broad view of the exception for the protection of the “rights and freedoms of others” in Article 13(1) of the Data Protection Directive, holding that it includes the protection of rights of property and their enforcement. The disclosure could be made without offending against the requirements of the Directive.
The BIS consultation document does not explore these issues, although it recognises (in paragraph 4.23) that the new powers will be contentious. It ducks them. Its approach seems to be to aim to confer the necessary powers and leave Ofcom to work out whether it is able lawfully to exercise them. What it says (in paragraph 4.28) is that Ofcom will have regard to any “relevant legal requirements (for example in privacy and data protection legislation and the e-Commerce Directive).” Unless a challenge of the kind made in France emerges, it sees that it will be for Ofcom to strike a balance between conflicting rights so far as illicit file sharing is concerned. If it does not do so, its decisions will no doubt be subject to judicial review (which may be the answer to any such challenge).
European law guarantees a number of fundamental rights but where the Internet brings them into conflict with each other the courts are not treating them as absolute. They are evidently taking a nuanced approach to them and accept that a balance must be struck. Perhaps what the French decision indicates most clearly is that the courts will wish to ensure that proper safeguards are in place but will not apply these guarantees dogmatically.
Nevertheless it is interesting to see that the outline of the Digital Economy Bill in the government’s draft legislative programme published on 29 June refers to giving Ofcom powers for the initial measures to warn off illicit file-sharers and to gather information but makes no reference whatsoever to the powers to apply technical measures. Is the government thinking again?