Thursday, April 10, 2008

More on 3 Strikes & Phorm: the ISP Strikes Back, but still true to Phorm

3 Strikes, semper passim :)

Technollama has a good post on Carphone Warehouse's opposition (in its guise as ISP TalkTalk) to the idea of "3 strikes and you're out", and the BPI's response of threatening court action. According to the Telegraph, CW received the following warning by fax from the BPI:

""... unless we receive your agreement in writing that within 14 days Carphone Warehouse will implement procedures set out above [bold added], we reserve our right to apply to court for injunctions and other relief without further notice to protect our members' rights."

Which leaves one wondering: WHAT procedures? Last Pangloss heard, negotiations were going on between the ISPA and the MPA as to a protocol for "progressive" discouragement of filesharing by eventual disconnection, but no agreement had been struck; certainly if the BPI has fomed a binding contract or even voluntary code of practice on similar lines with some or all UK ISPs, this is something the public should know about surely?

If, as seems more likely, no agreement exists, the BPI seem to be making some wrong assumptions about the remedies available to them. As it stand the common consensus is that ISPs are protected from liability for the actionable or illegal activity of their users unless they are shown to have actual or constructive knowledge of material they host fo rnusers (E Commerce Directive, Art 14). If the liability relates to the ISP's role as a mere conduit (Art 12) then ISP's are immune whether or not they receive notice. In all other circumstances, the BPI are limited merely to seeking an injunction against the ISP; although they are of course free to sue the actual users. "Other relief" - which can surely only be construed as implying either the imposotion of a filtering obligation or damages - does not prima facie seem to be available.

Of course in Ireland, also in apparent contradiction to both Arts 14 and 15 of the ECD, the music industry are currently attempting to impose an obligation to filter out pirate tracks on Ireland's biggest ISP, Eircom.Various Irish legal commentators notably TJ Macintyre and the unpronounceable Daithi McSigh have already pointed out the major policy and legal objections to such a claim. But it appears to be saber rattling season on both sides of the Irish Sea, presumably in anticipation of the consultation paper on 3 Strikes we are promised by BERR sometime between now and the autumn.


Talk Talk/CW themselves should not be regarded too quickly as heroes of the hour though. Remember Talk Talk is one of the ISPs already signed up for the currently rather controversial Phorm system. Since it seems unlikely UK ISPs are going to go down the 3 Strikes route without legislation, CW/TT have good PR to gain, and nothing much to lose, by speaking out against the BPI :)

On Phorm, matters currently appear to be running against the pioneering or invasive new ISP-level adware system (depending on your side of the fence.) The ICO amended their postition on Phorm yesterday after considerable pressure by inter alia, ORG and FIPR:

"Ad-targeting system Phorm must be "opt in" when it is rolled out, says the Information Commissioner Office (ICO)

European data protection laws demand that users must choose to enrol in the controversial system, said the ICO in an amended statement.

The decision could be a blow to Phorm which before now has said it would operate on an "opt out" basis.

The ICO will monitor the trials and commercial rollout of Phorm to ensure data protection laws are observed."

EDIT: there is a rather sensible comment on the Beeb site about the likely implications of opt-in for Phorm.

This statement, interestingly, still leaves untouched the question of whether Phorm is not only potentially in breach of DP law but an illegal interception of communications under RIPA. The ICO of course has an interest in surveillance, but does not oversee it; interception is technically supervised by the Interception of Communications Commissioner . Home Office communications have indicated they think Phorm legal in this respect, but other commentators such as Nicholas Bohm, differ.


Clive Feather said...

I hate to correct, but surely file sharing stuff is covered under Article 12 of the ECD, not Article 14? And, as a result, "unless they are shown to have actual or constructive knowledge of it" doesn't apply - even with actual knowledge, there's no liability for material being transmitted.

pangloss said...

I was talking about hosting liability - as users may be storing infringing tracks on ISP store space. Re ISPs acting as mere conduits for transmission of infringing tracks, you are of course right.