CyberLaw Blog

Archive for October, 2009

Article from: TorrentFreak, check out our new blog at FreakBits.

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ISP Threatens Legal Action Against UK Over Anti-Piracy Plans:

Back in August the UK government announced tough plans for dealing with online piracy. While the music and movie industries were notably supportive, opposition to the proposals were widespread. Those hoping that politicians might have had second thoughts are disappointed today.

While delaying a final decision until the next parliament, Business Secretary Peter Mandelson yesterday confirmed plans to have UK residents accused of illicit file-sharing disconnected from the Internet as a ‘last resort’.

Preceded by months of sending warning letters with an aim of achieving a 70% reduction in online piracy by 2011, Mandelson claims that only persistent offenders would be affected by the harshest measures – those accused of infringing copyrights multiple times.

However, downloading a single music track constitutes an infringement, so being accused on the basis of three or four tracks downloaded over a period of months could be enough to have an entire household disconnected from the Internet. Hardly the promised ‘proportionate’ response.

While the Business Secretary is insisting that there will be an independent appeals process to ensure that any accusations are accurate, his words aren’t inspiring confidence with Internet service providers.

Yesterday, BT Group made a statement indicating its concern at the government’s proposals, noting its disappointed that ISPs will have to bear some of the costs of the scheme, resulting in increased prices for broadband customers.

As detailed earlier, those costs are likely to spiral to £365m per annum, putting the alleged music industry piracy ‘losses’ of £200m in the shade.

‘We are also interested to hear whether or not customers will have some form of fair legal hearing before their broadband supplier is required to take any action against them,’ said BT.

TalkTalk, the UK’s second largest ISP, owner of the Tiscali and AOL brands and operator of the Dont Disconnnect Us website, went much further.

‘The approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court. What is being proposed is wrong in principle and it won’t work in practice. We know this approach will lead to wrongful accusations,’ said Andrew Heaney, TalkTalk’s Executive Director of Strategy and Regulation.

According to a report this morning, TalkTalk is now threatening to launch legal action if Mandelson makes good on his threats and implements any disconnection scheme without due process.

‘If the government moves to stage two we would consider that extra-judicial technical measures and would look to appeal the decision because it infringes human rights,’ Heaney told The Guardian. ‘TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal.’

One pressing issue that seems to have been completely ignored is the existence of current copyright laws which are already being used to punish alleged file-sharers in the UK.

Companies like ACS:Law are already making accusations against UK Internet users who they claim are infringing the rights of their clients, demanding £600+ for the alleged infringement of a single music track.

Are we to have a dual system where Internet users can be both disconnected by the government and financially punished by private companies for the same offenses? The government should decide which system is to prevail and pick one, changing the law if necessary.

The full proposals for the graduated response scheme will be detailed in the Digital Economy Bill, set to be published later on this year.

Music boss: Mandelson is wrong on internet pirates: “At this morning’s Cabinet Forum conference, Peter Mandelson announced the government’s plans to amend UK digital rights management, stating his intention of giving a fairer deal for all.

(Via Tech and Web from Times Online.)

Lord Mandelson unveils internet pirates suspension plan: “Persistent internet pirates will face an escalating series of sanctions which could end with their connection cut off, under plans unveiled by Lord Mandelson today.

The Business Secretary said he would introduce legislation next month to ensure that the worst illegal downloaders of music, film and television would face punishment, in the face of opposition from internet service providers (ISPs).

He told an audience of senior executives from Britain’s creative industries that internet piracy was “not a victimless act” but “a genuine threat to our creative industries” which needed to be urgently addressed.

He outlined plans to bring in the sanctions in two waves after the passing of new legislation, expected to be introduced in Parliament next month.

In the first phase, illegal downloaders would be sent warning letters and have their details passed on to media companies, which would have the option of launching their own legal actions. The second phase would be triggered a year after the legislation came into force. A range of technical measures would become available including the ability to artificially slow down the connection speed of those suspected. The final sanction would be a temporary suspension of the internet. Details on how long suspensions would last have not yet been announced.

Lord Mandelson said that the measures would target persistent rule breakers with a “fair, thorough process” of penalties including warnings to those suspected and internet account suspension as a last resort punishment”.

He said that he believed only a small number of people would have their connection stopped.

Opponents of the plans have said that families could lose access to the internet because of the actions of one member.

The plan faces stiff opposition from two internet providers, BT and Carphone Warehouse. They have complained about the costs of implementing the scheme and said that it would be almost impossible to enforce. Technology made it possible for serial pirates to disguise their online identities. But other internet providers such as Virgin Media are more sympathetic to disconnection.

The Digital Economy Bill will be introduced as part of November’s Queen’s Speech and detail further how the disconnection scheme would work.

In an attempt to head off the critics, Lord Mandelson published a series of letters from supporters, such as Sir Elton John, Noel Gallagher and James Blunt, although none of the three stars explicitly supported the disconnection proposal.

The former Oasis member, Gallagher, wrote: “I would support making ISPs play a bigger role in controlling illegal file-sharing, as long as any actions taken are considered, proportionate and the music community has a say in how they are put in place.”

(Via Law News from Times Online.)

Mandelson to press on with cutting internet links for download pirates: Lord Mandelson will say today that he intends to press ahead with controversial measures to cut off the internet connections of people caught downloading pirated music, films or television programmes.

(Via Law News from Times Online.)

Because the Lord knows better…

Mandelson to press on with cutting internet links for download pirates: Lord Mandelson will say today that he intends to press ahead with controversial measures to cut off the internet connections of people caught downloading pirated music, films or television programmes.

(Via Tech and Web from Times Online.)

Hidden High Court Injuctions: “

The Twitter vs Trafigura case continues though it really is the Guardian newspaper and Wikileaks who have been driving this amazing story that illustrates the total lack of freedom of expression granted to the citizens of Britain.

For those who haven’t been following the case: The Guardian was attempting to report on Trafigura, a multi-national oil and commodity trader, but received legal threats from Carter-Ruck. This led to an injunction stopping them from publishing their findings. Yet not only were they prevented from publishing their article but the injunction also prevented them from reporting about the injunction!

These ’superinjunctions’ are an incredibly draconian power and in a strong democracy they would only be used as a last resort in the most limited of circumstances – and when used this would be public knowledge. However, it now transpires that not only are these injunctions granted by judges with seemingly not a second thought for open justice, but there is no record of the judge’s actions either.

The Parliamentary Under Secretary of State, Bridget Prentice said yesterday, in answer to a written Parliamentary question that the information is not currently available and the High Court has no intention to collate such data:

Paul Farrelly MP: To ask the Secretary of State for Justice if he will (a) collect and (b) publish statistics on the number of non-reportable injunctions issued by the High Court in each of the last five years. [293012]

Bridget Prentice: The information requested is not available. The High Court collects figures on applications, however injunctions are not separately identifiable, and there are currently no plans to amend databases to do so.

I agree with wikileaks: ‘Time for UK journalists grow some balls and start violating censorship injunctions’

It is bad enough that superinjunctions exist at all, but it is absolutely appalling that there are not even records kept of how often they are used. Pressure needs to be put on the High Court to record these occasions, and make the details public as a matter of urgency.

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(Via Your Right To Know.)

COURT OF APPEAL JUDGMENT ON POLICE DATABASE: “

On 19 October 2009, the Court of Appeal, in Chief Constable of Humberside Police v Information Commissioner (2009) EWCA Civ 1079, allowed police appeals against a decision of the IC, upheld by the IT, that data on old minor convictions (of which there are probably about 1 million) must be deleted from the Police National Computer (‘the PNC’).  The Court of Appeal held that retaining information for police operational needs in the fight against crime and for other purposes was justified and did not infringe the data protection principles (‘the DPP’) under the DPA 1998, especially principles 3 (personal data shall not be excessive in relation to the purpose for which they are procured) and 5 (personal data shall not be kept for longer than is necessary).

Waller LJ, applying the approach from the Bichard Inquiry, following the Soham murders, said, at paragraph 43: ‘If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter.’

Carnwath LJ referred to the importance in a case of this kind having the involvement of a Judge with direct and hands-on experience of the criminal system. Hughes LJ, with direct hands-on experience of both the criminal and family systems, summarised the position as being that it is for the data controller to determine the purpose(s) for which the data is processed;  it is not open to the IC to impose his own determination of those purposes; the imposition of a concept of ‘core police purposes’ was misconceived; and in any event the proper purposes of the police in managing the PNC plainly include the retention of information for provision to others who have a legitimate need for it.

 Hughes LJ emphasized practical considerations and in particular the value, in the public interest, of the existence of a single comprehensive record of convictions and of its being held by police forces acting collectively.  Hughes LJ said, at paragraph 107: ‘Like both Waller and Carnwath LJJ, I take the clear view that if senior police officers with considerable operational experience are satisfied that even very old and comparatively minor convictions may sometimes be of assistance in police investigations, then unless that view is perversely or unreasonably held, it is not open to the Commissioner to substitute his own view of their potential use. But I should also add that the opinion expressed by the police witnesses in this case entirely accords with what is seen to be true from time to time in major criminal investigations. As was in evidence in these proceedings, Dame Janet Smith also reached a similar conclusion when considering the investigation into Dr Shipman. Such old convictions, if never subsequently repeated, may very well not be the kind of material which it is proper to put before a jury, … but that does not begin to mean that they have not been of use in the investigation. Quite apart from propensity (or lack of it) to offend in a particular manner, they are likely to be useful for other reasons, of which location and associates are but two simple examples. Moreover, the critical consideration is not the use of the conviction standing by itself, but its potential value in conjunction with other information pieced together by a skilled detective.’

Hughes LJ further observed that many others depend heavily, and reasonably, on the maintenance by the police of these records. Those others include (but are not limited to) the criminal courts, the family courts and those concerned with the protection of children and the vulnerable.  He said that the criminal courts have a plain need for reliable and comprehensive information. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to criminal proceedings. There are at least two situations in which the need for such records arises daily. The first is in sentencing. The second relates to the credit of witnesses, especially those relied upon by the Crown. The Secretary of State for Justice expressed the view in this case that ‘providing anything less than full information to the courts would potentially undermine the criminal justice process’.  Hughes LJ agreed.

Hughes LJ also stated that the importance of multi-agency working to child welfare in general, and to child-centred family proceedings in particular, has been recognised for many years, has been the repeated subject of judicial and ministerial exhortation alike, and is difficult to overstate. It is, nowadays, the daily norm of cases in the family courts. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to these proceedings either.  It may well be that at times such co-operation throws up difficult questions about the extent of disclosure which a police force ought to make to social services or other child welfare professionals, but that is not a reason for failing to have available a comprehensive record in order to make a fully-informed decision about it.

As regards the vetting of potential employees, Hughes J said that, given the statutory framework, it is plain that it is part of the necessary public purposes of the PNC that it maintain a complete record of convictions etc to enable the statutory scheme to work.

(Via Panopticon Blog.)

Commission considers wider-ranging data breach notification law: “The European Commission will consider passing new laws forcing organisations that lose personal data to go public with that loss. The Commission has until now been opposed to the creation of wide-ranging data breach notification requirements.”

(Via OUT-LAW News.)

Culture minister confirms court oversight for UK disconnections: “UK internet users will not be disconnected from the internet for illegal file sharing without a court’s involvement, a Government minister has pledged. Culture minister Ben Bradshaw has told MPs that there would be a ’strict’ process involving the courts.”

(Via OUT-LAW News.)

Police make a mockery of data protection: “

Court judgment ‘forgets privacy rights of millions’

Comment While the police are very keen to retain as much data on the average citizen as they can ‘just in case’ it becomes useful, they are markedly less happy when the data being collected relates to them.…

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(Via The Register – Public Sector.)