The immediate effect of the Memo is that net-users engaging either knowingly or unknowingly in illegal file sharing online are now liable to receive a letter from their ISP informing them of the breach in question. The interesting point is really the number of actors involved before a user can be identified. The BERR is quick to point out that there is no policing of the accounts of net-users and is very quick to rationalise the nature of the "surveillance" at play before a net-user is identified. It describes the process in the following words:
"ISPs do not monitor individual accounts. Letters to customers are generated by rights holders identifying material available on file-sharing websites which they believe breaches copyright. During this process, it is possible for rights holders to identify the IP address. Rights holders then alert ISPs who can isolate the details of the user’s account of that IP address and send a letter. The letter informs the customers that their account has been used to share copyrighted material without permission and points customers towards legal alternatives. At no stage is a consumer’s personal web browsing monitored. "
This rationalisation, however, does not hide the level of "surveillance" at play here before illegal activities online can be tracked down. Two issues are raised by this quote. The first one is raised by the second line in the above quote which states that right holders are able to identify the IP addresses of users. It is not uncommon for an IP address to contain information which can identify the user. This all depends on the information you have given to the ISP when creating your account. But at the very least, most of us do give our surnames away when creating an account with an ISP. The worrying fact here is that such information can be included in the IP address. The right owner may thus be able to identify the user.
The second issue raised by this quote relates to the process by which ISPs can identify IP addresses. This process is not explained and this raises a lot of concerns for the net-users. If I bought a CD from HMV and the latter was later able to track down my address, the question would arise as to how this was made possible. In the interests of openness, transparency and fairness, the nature of this process should be disclosed to the public to ensure that we are aware of how this information is being gathered. I am not against this initiative in theory, however, Ithink a greater level of transparency and openness is required.
This brings me to my second point: what happens after the letter is sent to the net-user? It seems that the Government is in favour of various sanctions as slowing down the internet connection of the user, the three strikes you are out approach etc. The ISPs so far have not agreed to any of these sanctions. Hence, there is a lack of clarity as to the next step in this process which is the most crucial one: the sanction. It is abundantly clear that few net users will be deterred from engaging in illegal file online if they only get a letter from their ISPs. A more robust approach, as with every prohibitive legal framework, is required and in this instance, the nature of the sanction itself is the key to effective and real action against illegal file sharing online.
In all fairness, one has to note that the Government has also launched a consultation today on the legislative options to tackle illegal file sharing of film and music online. But in my view, a range of sanctions should have been agreed amongst all the relevant parties before this agreement was publicised. A regulatory framework is much more effective and acts as a deterrent if the key elements of the framework, namely, rights, obligations, sanctions etc are clearly identified at the time of imposition on the relevant persons. CyberPanda will keep you posted on how this initiative evolves and whether or not these concerns are addressed.