A Guide to the Digital Economy Act 3 – Subscriber Appeals

This is the third in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals.

  1. Introduction and the Initial Obligations Code
  2. Technical Measures to Limit Internet Access
  3. Subscriber Appeals
  4. Web-blocking
  5. Summary

The Digital Economy Act 2010 puts in place a framework for taking actions against those with Internet subscriptions who have been accused of infringing copyright. As a result, these provisions include an appeals process through which a subscriber can contest the allegations made against them.

Subscriber Appeals

Section 124K of the Communications Act 2003 (as amended by the Digital Economy Act) is dedicated to setting up the rules for an appeals process. The process is different depending on whether the subscriber is appealing against a part of the Initial Obligations Code or a technical measure. In both cases, subscribers have the right to appeal to a person who is independent of ISPs, copyright owners and Ofcom as far as the appeal is concerned (under Section 124K (2) of the Act). In the case of technical measures, a subscriber also has the right of appeal to the First-tier Tribunal, most likely the existing Copyright Tribunal defined by Chapter VIII of the Copyright, Designs and Patents Act 1988. It should be noted that while decisions of the Tribunals can be appealed to the Courts, there is no direct route to a Court in either case.

Burdens of Proof

As the proceedings involved are of a civil nature the allegations need only be proved “on the balance of probabilities“. Essentially this means that it must be more likely the accusation is true than it is not. This contrasts to criminal proceedings where things must be proved “beyond reasonable doubt”. In terms of who must prove what, according to Section 124K (5) the following must be proved by either the copyright owner or the ISP:

  1. that the infringement occurred and
  2. that the report is about the subscriber’s IP address

Under 124K (6), it is up to the subscriber to show:

  1. that the infringement was done by someone else, or
  2. that they took reasonable steps to prevent others infringing copyright through their service

if they wish to use either as a defence. However, at no point are the reasonable steps defined in the Act.

Results of an Appeal

Under 124K (7) whoever is determining the appeal can award compensation to a subscriber (to be paid by either the copyright owner or ISP) in the event the appeal finds in their favour and reimburse them for reasonable costs, unless it would be “unjust” to do so – 124K(9). In the case of technical measures, the appeal also has the power to confirm, withdraw or replace any technical measure imposed where it is seen fit to do so – 124K(9)(a) – or just hand the decision over to Ofcom – 124K(9)(d). The final part makes it clear that no technical measures can be imposed until the time limit for bringing appeals including those to the Tribunal has ended and any appeal has ended – 124K(11). However, it does suggest that a subscriber can waive their right to appeal, but not details are given on why or how this would occur.

How will this Affect You?

Due to how little specific detail there is on how the appeals process will work in practice, how easy it will be to use and how much it will cost, it is hard to say what effects it will have on the average subscriber. It is important to note that while the copyright owner is required to prove that an infringement of their copyright occurred, there are no minimum standards of evidence. Other than that, all they require is your IP address and a timestamp. If you wish to claim that a third party was responsible for the infringement or you took reasonable measures to prevent it occurring, the burden is on you to prove your innocence and no guidelines are given as to what measures could be taken. Unlike in the case of normal copyright infringement (to the author’s knowledge), you will not have access to a court and the protections and transparency it provides – the appeals are restricted to either the appeals body, or that and the Tribunal in the case of technical measures.

The following two sections (Sections 124L and 124M) should have little direct impact on the ordinary subscriber as they concern enforcement and costs respectively. The enforcement section imposes a fine of up to £250,000 on ISPs who do not comply with the legislation and the costs section allows for orders to be put in place stating how the costs of all these procedures are to be shared between ISPs, copyright owners and subscribers. Of course, whoever ends up paying, it is likely those costs will be passed on to the subscriber, content creator or consumer eventually. Section 124N consists of a set of definitions and so is not particularly relevant to this guide.

The final part of the measures on online copyright infringement is the infamous “Section 17” on the powers to block websites. This shall be covered in the next part of the guide.

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