CyberLaw Blog

Archive for the ‘Due Process’ Category

Is access to the internet now a human right?: “Can checking your e-mail really be a human right? Carphone Warehouse hopes so. After the Business Secretary, Lord Mandelson, announced his plans to disconnect persistent internet pirates last week, the owner of Britain’s largest internet service provider, TalkTalk, threatened him with legal action under human rights legislation.

(Via Tech and Web from Times Online.)

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.)

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.)

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

3-Strikes For Pirates Makes European Comeback Tour:

The threat of 3-strikes based legislation had been reduced in recent weeks, with strong protests in the UK and proposed legislation elsewhere meeting stiff opposition.

However, none of this stopped the lobby groups, or the politicians looking to push for the ruling.

In the EU, the amendment, which would protect against 3-strikes laws by requiring due judicial process to occur before any sanction (such as cutting off Internet access), has been substantially watered down. Meanwhile, in France the Constitutional Court has ruled in favor of a slightly modified version of HADOPI – their legislation which includes a 3-strikes sanction.

On Tuesday, the Parliament gave up on Amendment 138, which had been voted on twice by the assembly, gaining a majority both times. The amendment was supposed to protect the rights of citizens from being treated as guilty upon the accusations of an industry group, and punished based on the same. It read;

Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.

Instead, they are now considering a version which does not guarantee the right to an effective and timely judicial review.

Christian Engstrom, the Pirate Party’s MEP, commented on the amendment in his blog. He included the differences in text that have been made since Tuesday (bold denotes added text, strike-through indicates removed) in a meeting between three negotiators for the European Parliament and representatives for the Council of Ministers.

The changes included the removal of the judicial guarantee, that any measures should come only after a fair an impartial procedure (and should now just ‘respect’ such things), and the ACTA-like inclusion of ‘National Security’ clauses.

He summarized things simply, saying: ‘It shows utter contempt for Parliament by totally ignoring everything it says. The Council plans to bypass Parliament and once and for all prove that it is they who make the decisions, end of story.’

Meanwhile, France’s highest Constitutional Court has approved a slightly modified version of HADOPI. While initially blocked last September, a change to require a judge to sign off on the disconnection action (rather than the Agency itself) has meant it passed the Court. However, such court measures will be ‘fast tracked’ rather than given full judicial process, a situation the New York Times describes as ’similar to traffic violations’.

This has angered many, including (of course) the Pirate Party. Laurent Le Besnerais of the Parti Pirate and Pirate Party International called it ‘a huge blow for Internet Freedom.’

‘In June 2009, this same Council declared that Internet access is a fundamental right which cannot be restricted without judicial process,’ he told TorrentFreak. ‘Today, the council gives a judge the right and responsibility to pronounce a closure of Internet access to anyone suspected of having shared illegally. Furthermore, the suspect will have to prove his innocence, which creates a presumption of guilt.’

With the flip-flopping over these measures, it can only be seen as a greater boost for the European Pirate Parties in future elections. However, since much of the party works and draws its support online, there is the risk that members could start having their net connections cut off. With evidential standards so low, would it really be beyond the realms of possibility that political critics of these plans could end up being cut off at the say-so of those they oppose?

If all goes as planned the agency will be staffed next month, with letters starting in the new year, and terminations starting as soon as next summer. How long the law will stay once the innocent start being punished is harder to predict. As with IPRED, the people the law aims to deal with will just use seedboxes, VPNs, and open WiFi hotspots instead of their home connections.

BBC NEWS | Technology | Europe backs down on piracy plans: “Europe backs down on piracy plans”

Page last updated at 11:10 GMT, Friday, 23 October 2009 12:10 UK

The European Parliament has given the green light for member states to cut persistent file-sharers off from the net.

It has dropped an amendment to its Telcoms Package which would have made it hard for countries to cut off pirates without court authority.

It follows pressure from countries keen to adopt tough anti-piracy laws.

The French government has just approved plans which could see pirates removed from the net for up to a year.

The UK’s file-sharing policy is also likely to include a clause about disconnecting persistent offenders.

An amendment to the European Parliament’s forthcoming telecoms legislation was designed to protect citizens against being automatically cut off from the net.

Amendment 138 read: “Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances…and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights.. including effective judicial protection and due process.”

Dropping it effectively means that individual countries would be able to ask internet service providers to remove users deemed to be persistent pirates without needing a prior court order.

Persistent problem

“ Without compelling services piracy will not be beaten ”
Mark Mulligan, Forrester Research

There has been much debate around Europe as to whether internet access is a fundamental right.

The European Parliament has already adopted a provision stating that internet access is “critical for the practical exercise of a wide array of fundamental rights”.

UK prime minister Gordon Brown has said that people are as entitled to internet access as to gas, water and electricity.

At the same time Business Secretary Peter Mandelson has moved to toughen up anti-piracy legislation to include the ability to remove persistent file-sharers from the net.

According to figures from analyst firm Forrester, 14% of European internet users engage in illegal file-sharing.

Legislation may not be the answer, thinks Forrester analyst Mark Mulligan.

“Piracy will not be solved by legislation alone. Without compelling services piracy will not be beaten,” he said.

There have been a flurry of announcements about legitimate services in recent months, including Sky’s SkyTunes service and tie-ups between the likes of internet service provider CarphoneWarehouse and music service Napster.

New methods

Peer-to-peer networks are likely to be the main targets of any anti-piracy legislation.

At network level, internet service providers are able, if asked, to identify the particular machines from which music or other content is being illegally downloaded.

But non-network piracy methods, including using instant messaging, e-mail, music blogs, bluetooth and iPod ripping, are on the rise.

It is likely that legislation will be too slow to catch pirates, thinks Mr Mulligan.

“Technology just moves quicker. Already we are seeing around 20 different alternatives to peer-to-peer piracy,” he said.

This week France’s constitutional court approved its revised anti-piracy plans.

The proposed legislation operates under a “three strikes” system. A new state agency would first send illegal file-sharers a warning e-mail, then a letter and finally cut off their connection if they were caught a third time.

Under the revised law, a judge must rule on the issue of whether to disconnect users.

The UK’s policy on file-sharing is due to be revealed next month.

Story from BBC NEWS:

http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/8322308.stm

EU Parliament drew back from file-sharer demands over legal uncertainty: “The European Parliament has had to withdraw demands for court oversight of the cutting off of file sharers’ internet access after it received legal advice that it had been over-stepping its powers.”

The Parliament is locked in a power struggle with the Council of Ministers and the European Commission over its demands that a telecoms reform package safeguard the rights of internet users to a hearing before disconnection.

The Commission and Council want their Telecoms Packaged passed but by rejecting Parliament’s amendment have had to block the whole scheme. The parties will enter formal conciliation on 4th November and must have a compromise deal to put to their members by 30th December.

The Parliament has dropped the controversial Amendment 138, though, and has adopted a new preferred text because of legal problems with the original, according to a Parliament source.

“The Parliament has had legal advice from its own legal service that Amendment 138 was not legally admissible,” said the source. “It was told that it went beyond Community competency.”

Rights owners and some countries, such as France and the UK, want to be able to disconnect the internet connections used by alleged file sharers. The Parliament’s Amendment said that users could not be disconnected “without a prior ruling by the judicial authorities”.

“This is internal market legislation and you can’t tell member states how to organise their judicial systems, it is beyond Community competence,” said the source. “So the MEPs are trying to find a way to keep the content in a way that is legally feasible.”

The Parliament will approach the conciliation process with a new proposed clause that it hopes will achieve the same ends and stay on the right side of EU Community law.

“Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances … and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights … including effective judicial protection and due process,” it says in part.

“The result should be that anyone who whose access might be cut off should have access to due process, whether that is a court or a tribunal or an administration,” said the source. “It does not have to be a judge but it should respect the rights guaranteed under the European Convention on Human Rights.”

Conciliation will involve the Council, Parliament and Commission. If they reach agreement by 30th December they will have to take the compromise text for approval by their respective memberships by February. If agreement is not reached between the three bodies the entire Telecoms Package will be scrapped and the Commission will have to start the legislative process again, the Parliament source said.

(Via OUT-LAW News.)