Changes to the penalties for online copyright infringement could leave UK citizens vulnerable to blackmail by unscrupulous companies that demand payment for alleged copyright infringements.
Proposals in the Digital Economy
Bill would mean that anyone found guilty of online copyright infringement could now get up to ten years in prison. These changes could be misused by companies, such as Goldeneye International, which send threatening letters about copyright infringement.
Typically, the letters accuse the recipients of downloading files illegally and demand that they pay hundreds of pounds or be taken to court.
Often they refer to downloaded pornographic content, to shame the recipients into paying
rather than challenging the company in court. The Citizens Advice Bureau has criticised "unscrupulous solicitors and companies acting on behalf of copyright owners" who take part in such "pay up or else schemes". It advises people who
receive such letters to seek legal advice rather than simply paying them.
How do copyright trolls get 'evidence'?
Copyright trolls compel Internet Service Providers to hand over the personal contact
details of the account holder whose IP addresses are associated with illegal file downloads. However, this in itself is not evidence that the illicit downloading observed is the responsibility of the person receiving the letter.
Common problems include:
Sharing wifi with family, friends or neighbours who may be the actual infringer
Errors with timestamps and logs at the ISP@
Why the Digital Economy Bill will make this worse
The Government has argued that it is increasing prison sentences to bring the penalties for online copyright infringement in line with copyright infringement in the real
world. It also insists that it is not trying to impose prison sentences for minor infringements such as file sharing. However, the loose wording of the Bill means that it could be interpreted in this way, and this will undoubtedly be exploited by
Executive Director Jim Killock said:
Unscrupulous companies will seize on these proposals and use them to exploit people into paying huge fines for online infringements
that they may not have committed.
The Government needs to tighten up these proposals so that only those guilty of serious commercial copyright infringements receive prison sentences.
Helping companies send
threatening letters to teenagers is in no one's interest."
What does the Government need to do?
ORG has asked the Government to amend the Digital Economy Bill to ensure that jail
sentences are available for serious online copyright infringement. While this will not put an end to the dubious practices of copyright trolls completely, it will prevent them from taking advantage of the law.
Ten years jail for filesharing: or in fact any minor copyright infringement where there is a loss by not getting what one might get or cause a risk of further infringement.
Clause 27 of the Digital Economy Bill will mean that more or
less any wrongful use where somebody hasn't paid a licence fee (think of memes) is a crime. Causing "risk" to the copyright holder means almost by definition ordinary file sharing is a criminal rather than civil infringement.
government really intending to threaten teenagers with prison?
Why has the Digital Economy Bill been
left with such a stupid legal change? Both the government and the Intellectual Property Office said they just wanted to bring online infringement into line with "real world" fake DVD offences. They were worried about the difficulties with
charging people who run websites that help people download copyright works.
However, that isn't how they offence is drawn up: and the government has now been told in Parliament twice that they are both criminalising minor infringements and helping
copyright trolls. Copryight trolls, we should remember, specialise in threats concerning file sharing of niche pornographic works in order to frighten and embarass people into payment, often incorrectly, and to our knowledge, have never taken anyone
to court in the UK .
The answers have been startlingly bad. Kevin Brennan
stated , for Labour:
The Open Rights
Group has expressed concern about the Government's insistence that there needs to be "reason to believe" that infringement will cause loss or "the risk of loss". Its fear is that that phrase, "the risk of loss", could
capture quite a wide range of behaviour, perhaps beyond the scope of what the Government say they intend. In particular, its concern is the extent to which that phrase will capture file sharing.
Copyright trolls get their profits
when a certain number of people are scared enough to respond to those notifications and pay up. Frequently these accusations are incorrect, misleading and sent to account holders who did not sanction any such further file sharing. However, as I
understand it, sending that kind of speculative threat to consumers is, unfortunately, perfectly legal. Some are concerned that if the Bill retains the concept of risk of loss, it could aid the trolls by enabling them to argue with more credibility that
account holders may face criminal charges and a 10-year prison sentence.
Matt Hancock gave a non-answer:
We recognise that the maximum sentence of 10 years, even if only for the most serious cases,
must be carefully targeted. Consequently, clause 26 also makes changes to the existing offence of online copyright infringement to make it clearer when that offence is committed and who should be considered liable. The amendments speak to some of those
The concept of prejudicial effect in the existing legislation will be replaced with a requirement that the infringer intends to make a monetary gain for themselves or knows or has reason to believe their actions will
expose the rights holder to a loss or risk of loss in money. I will come to the debate around definition of that in more detail.
The point of this clarification is to act as a safeguard to ensure that the increased maximum penalty
is applied only to serious criminals who deserve it and will not apply to those who share material accidently or without knowledge of the consequences.
In the Lords, Labour suggested returning to the current definition of
"prejudicial effect": which (as Matt Hancock says) suffers the same problem of being very wide and catching people it should not.
The government have failed to give any serious answers. The Opposition, Labour and Liberal Democrat should
be able to see that an egregious mistake is being made, and they have the ability to force a change.
The problem is really easily fixed. The government simply need to put in thresholds to ensure that only significant damage or serious risk is
caused. We have an amendment prepared and published.
Why does the government want to help copyright trolls bully grannies
and criminalise file sharers whose actions may be idiotic, but hardly criminal?
The government needs to fix this before it becomes law and abuse of copyright ensues.
However, the fact of the matter is that the
DE Bill gives the BBFC (the regulator, TBC) the power to block any pornographic website that doesn't use age
verification tools. It can even block websites that publish pornography that doesn't fit their guidelines of taste and acceptability - which are significantly narrower than what is legal, and certainly narrower than what is viewed as acceptable by US
A single video of "watersports" or whipping produces marks, for instance, would be enough for the BBFC to ban a website for every UK adult. The question is, how many sites does the regulator want to block, and
how many can it block?
Parliament has been told that the regulator wants to block just a few, major websites, maybe 50 or 100, as an "incentive" to implement age checks. However, that's not what Clause 23 says. The
"Age-verification regulator's power to direct internet service providers to block access to material" just says that any site that fits the criteria can be blocked by an administrative request.
What could possibly go
Imagine, not implausibly, that some time after the Act is in operation, one of the MPs who pushed for this power goes and sees how it is working. This MP tries a few searches, and finds to their surprise that it is
still possible to find websites that are neither asking for age checks nor blocked.
While the first page or two of results under the new policy would find major porn sites that are checking, or else are blocked, the results on
page three and four would lead to sites that have the same kinds of material available to anyone.
In short, what happens when MPs realise this policy is nearly useless?
They will, of course, ask for
more to be done. You could write the Daily Mail headlines months in advance: BBFC lets kids watch porn .
MPs will ask why the BBFC isn't blocking more websites. The answer will come back that it would be possible, with more
funding, to classify and block more sites, with the powers the BBFC has been given already. While individual review of millions of sites would be very expensive, maybe it is worth paying for the first five or ten thousand sites to be checked. (And if
that doesn't work, why not use machines to produce the lists?)
And then, it is just a matter of putting more cash the way of the BBFC and they can block more and more sites, to "make the Internet safe".
That's the point we are making. The power in the Digital Economy Bill given to the BBFC will create a mechanism to block literally millions of websites; the only real restraint is the amount of cash that MPs are willing to pour into
Government says privacy safeguards are not "necessary" in Digital Economy Bill
The Government still doesn't consider privacy safeguards necessary in the Digital Economy Bill and they see court orders for website
blocking as excessively burdensome.
The House of Lords debated age verification for online pornography last week as the Committee stage of the Digital Economy Bill went ahead.
Peers tabled a considerable
number of amendments to improve the flawed Part 3 of the Bill, which covers online pornography. In their recent report, the Committee
on the Constitution said that they are worried about whether a proper parliamentary scrutiny can be delivered considering the lack of details written on the face of the Bill. Shortly after the start of the debate it became obvious that their concerns
Lords debated various aspects of age verification at length, however issues of appeal processes for website blocking by Internet service providers and privacy safeguards for data collected for the age-verification
purposes will have to be resolved at a later stage.
In our view, if the Government is not prepared to make changes to the Bill to safeguard privacy, the opposition parties should be ready to force the issue to a vote.
Appeals process for ISP blocking
Labour and Lib Dem Lords jointly introduced an amendment that would implement a court order process into the blocking of websites by Internet service providers. The
proposal got a lot of traction during the debate. Several Peers disagreed with the use of court orders, arguing about the costs and the undue burden that it would place on the system.
The court order process is currently
implemented for the blocking of websites that provide access to content that infringes copyright. However, the Government is not keen on using it for age verification. Lord Ashton, the Government Minister for Culture, Media and Sport, noted that even the
copyright court order process "is not without issues". He also stressed that the power to instruct ISPs to block websites carrying adult content would be used "sparingly". The Government is trying to encourage compliance by the
industry and therefore they find it more appropriate that ISP blocking is carried out by direction from the regulator.
The Bill doesn't express any of these policy nuances mentioned by the Government. According to Clause 23 on ISP
blocks, age-verification regulator can give a notice to ISPs to block non-complying websites. There is no threshold set out in the clause that would suggest this power will be used sparingly. Without such threshold, the age-verification regulator has an
unlimited power to give out notices and is merely trusted by the Government not to use the full potential of the power.
The Government failed to address the remaining lack of legal structure that would secure transparency for
website blocking by ISPs. Court orders would provide independent oversight for this policy. Neither the method of oversight, nor enforcement of blocking have been specified on the face of the Bill.
For now, the general public can
find solace in knowing that the Government is aware that blocking all of social media sites is a ridiculous plan. Lord Ashton said that the Government "don't want to get to the
situation where we close down the whole of Twitter, which would make us one of two countries in the world to have done that".
Privacy protections and anonymity
Labour Peers - Baroness Jones and
Lord Stevenson and Lord Paddick (Lib Dem) introduced an amendment that would ensure that age-verification systems have high privacy and data protection safeguards.
The amendment goes beyond basic compliance with data protection
regulations. It would deliver anonymity for age-verification system users and make it impossible to identify users throughout different websites. This approach could encourage people's trust in age-verification systems and will reassure people to safely
access legal material. By securing anonymity, people's right to freedom of expression would be less adversely impacted. Not all the problems go away: people may still not trust the tools, but fears can at least be reduced, and the worst calamities of
data leaks may be avoided.
People subjected to age verification should be able to choose which age-verification system they prefer and trust. It is necessary that the Bill sets up provisions for "user choice" to assure a
functioning market. Without this, a single age-verification provider could conquer the market offering a low-cost solution with inadequate privacy protections.
The amendment received wider support from the Lords.
Despite the wide-ranging support from Lib Dem, Labour and cross-bench Lords, the Government found this amendment "unnecessary". Lord Ashton referred to the guidance published by the age-verification regulator that will
outline types of arrangement that will be treated as compliant with the age-verification regulator's requirements. Since the arrangements for data retention and protection will be made in the guidance, the Government asked Lord Paddick to withdraw the
Guidance to be published by the age-verification regulator drew fire in the Delegated Powers and
Regulatory Reform Committee's Report published in December 2016. In their criticism, the Committee made it clear that they find it unsatisfactory that none of the age-verification regulator's guidelines have been published or approved by Parliament.
Lord Ashton did not tackle these concerns during the Committee sitting.
The issue of privacy safeguards is very likely to come up again at the Report stage. Lord Paddick was not convinced by the Government's answer and promised to
bring this issue up at the next stage. The Government also promised to respond to the Delegated Powers and Regulatory Reform Committee's Report before the next stage of the Bill's passage.
Given the wide support in the Lords to
put privacy safeguards on the face of the Bill, Labour and Lib Dem Lords have an opportunity to change the Government's stance. Together they can press the Government to address privacy concerns.
The Government was unprepared to
discuss crucial parts of the Part 3. Age verification for online pornography is proving to be more complex and demanding than the Government anticipated and they lack an adequate strategy. The Report stage of the Bill (22 February) could offer some
answers to the questions raised during the last week's Committee sittings, but Labour and Lib Dems need to be prepared to push for votes on crucial amendments to get the Government to address privacy and free expression concerns.
It is a bit of a fad to berate the social networks for passing on 'fake news' and other user posts deemed harmful to politicians and their jobs.
Although introduced last year, a nonsense private members bill is now getting a bit of attention for its
proposals to demand that social media censors its users posts.
Labour MP Anna Turley's Malicious Communications (Social Media) Bill, calls for media censor Ofcom to impose fines up to £2 million for social networks who don't adequately prevent
threatening content appearing on their services.
The bill would see social networks like Facebook and Twitter, and likely include apps like Snapchat and Instagram, to be added to a register of regulated platforms by the Secretary of State.
If the bill is passed into law, the companies on the list would be required to implement some sort of age verification blocking system akin to ISP blocking where over verified 18s could opt out of the content blocking.
The core of the bill as follows:
1 Requirements on operators of regulated social media platforms
(1) Operators of social media platforms on the register of regulated
social media platforms in section 5 (1) must have in place reasonable means to prevent threatening content from being received by users of their service in the United 5 Kingdom during normal use of the
service when the users--
(a) access the platforms, and
(b) have not requested the operator to allow the user to use the service without filtering of
(2) Operators must not activate an unfiltered service when requested by the user, 10 unless--
(a) the user has
registered as over 18 years of age, and
(b) the request includes an age verification mechanism.
(3) In implementing an age verification mechanism operators must follow
guidance published by the age verification regulator.
(4) 15 In subsection (3), "age verification regulator" has the meaning given by section 17 of the Digital Economy Act
2 Duties of OFCOM
(1) OFCOM must assist, on request, the Secretary of State to meet his or her duties in respect of the register of
regulated social media platforms.
(2) 20 It shall be the duty of OFCOM to monitor and assess the performance of the operators of regulated social media platforms in meeting the requirements of
3) In order to assess the adequacy of the arrangements of an operator of a regulated social media platform to meet the requirements of section 1, OFCOM may
(a) survey the content of the social media platform, and
Parliament's Culture, Media and Sport Select Committee said it would investigate the establishment's concerns about the public being supposedly swayed by propaganda and untruths.
The inquiry will examine the sources of fake news, how it is spread and
its impact on democracy. Damian Collins, the committee chairman, said the rise of propaganda and fabrications is:
A threat to democracy and undermines confidence in the media in general. Just as major tech
companies have accepted they have a social responsibility to combat piracy online and the illegal sharing of content, they also need to help address the spreading of fake news on social media platforms, he said.
also be given new tools to help them assess the origin and likely veracity of news stories they read online.
The committee will be investigating these issues as well as looking into the sources of fake news, what motivates people
to spread it and how it has been used around elections and other important political debates.
The MPs want to investigate whether the way advertising is bought, sold and placed online has encouraged the growth of fake news. They also
want to address the responsibility of search engines and social media to stop spreading it.
New research suggests that online hoaxes and propaganda may have only had limited impact in the US presidential election, however. According to a study by
two US economists, fake news which favoured Donald Trump was shared 30 million times in the three months before the election, four times more than false stories favouring Hillary Clinton. But the authors said that only half of people who saw a false
story believed it, and even the most widely circulated hoaxes were seen by only a fraction of voters.
As the internet censorship bill continues its progress through Parliament, news websites have been noted a few opinions and sound bites.
A couple of weeks ago David Kaye, the UN's Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, wrote to ministers to warm them that their proposals could breach international law . In his letter, he said:
I am concerned that the age-verification provisions give the
Government access to information of viewing habits and citizen data. Data provide to one part of government can be shared with other parts of government and private sector companies without a person's knowledge and consent.
While I am cognizant of the need to protect children against harmful content. I am concerned that the provisions under the bill are not an effective way for achieving this objective as they fall short of the
standards of international human rights law.
The age-verification requirement may easily be subject to abuse such as hacking, blackmail and other potential credit card fraud.
He also expressed concern at the
bill's lack of privacy obligations and at a significant tightening control over the Internet in the UK.
Murray Perkins, a senior examiner with the BBFC, has indicated that the depiction of violent and criminal pornographic acts would be prohibited
both online and off, in accordance with the way obscenity laws are interpreted by British prosecutors.
And the way British prosecutors interpret obscenity laws is very censorial indeed with many totally mainstream porn elements such as squirting
and fisting being considered somehow obscene by these government censors.
Jim Killock, executive director of the Open Rights Group, said in an earlier statement the legislation would lead to unprecedented censorship. He noted:
Once this administrative power to block websites is in place, it will invariably be used to censor other content.
Of course pro-censorship campaigners are delighted. Vicki Shotbolt, chief executive officer for
Parent Zone, gloated about the end of people's freedom to access porn.
This isn't about reducing anyone's freedom to access porn. It is simply bringing the online world more in line with the offline.
= Europe has voiced legal doubts about the current regime of ISPs defaulting to internet censorship unless subscribers actively choose to opt out of the censorship. So now the government has introduced a new clause into the Digital Censorship Bill
currently in the House of Lords explicitly enabling ISP network level website blocking.
Thomas Ashton, a minister from the DCMS has tabled the following amendment:
A provider of an internet access service to an end- user may prevent or restrict access on the service to information, content, applications or services, for child protection or other purposes, if the action is in accordance with the terms on which the
end- user uses the service.
(2) This section does not affect whether a provider of an internet access service may prevent or restrict access to anything on the service in other circumstances.
Members and supporters of the National Secular Society gathered in Portcullis House this week to discuss the future of free speech, two years after the attack on Charlie Hebdo .
The Society was honoured to be joined by Caroline Fourest, who helped
edit the Survivor's Edition of Charlie Hebdo published shortly after the massacre.
She discussed the shameful treatment of Charlie Hebdo following the massacre by some UK media outlets: after the attack, Sky News cut her off in the middle
of an interview when she tried to show a cartoon of Mohammed. Those who defy Islamic blasphemy laws don't just face violence and threats, she said, but demonisation from the regressive left.
She stressed the need for secularists to condemn
anti-Muslim bigotry but criticised the term Islamophobia , arguing that it conflated Muslims with Islam, and stifled discussion about the religion.
Introducing the event, Keith Porteous Wood, the executive director of the National Secular
The heartening outpouring of solidarity, the sense of indignation and outrage, the crowds shouting 'Je Suis Charlie' had offered a brief glimmer of hope.
But the solidarity didn't
last, our collective outrage quickly gave way to bitter disputes, and bile against Charlie from those who blamed the victims for their own murder. The crowds went home.
The panel also featured writer and journalist Nick Cohen, Jodie
Ginsberg of Index on Censorship and Martin Rowson. Nick Cohen urged those present to buy Caroline Fourest's book, In Praise of Blasphemy , after she said that, despite it being a bestseller in France, no UK publisher would touch it. He accused
people of making feeble excuses for not showing genuine solidarity with Charlie Hebdo , arguing that there were very good reasons to be frightened of publishing a Mohammed cartoon, but that few would admit that was the true reason.
CEO of Index on Censorship, said that a pincer movement was attacking free speech. She pointed to Government proposals for extremism disruption orders as one example, and criticised Tony Blair and other politicians for calling for laws
against offending religious feelings. She said that society lacked the ability to debate productively and that whatever you did, however innocuous you think it is, somebody will claim to be offended . People went very quickly after the
attack from saying Je Suis Charlie to, Je Suis Charlie, but... and too many claim to defend free speech but in practice out only the kind I like.
Guardian cartoonist Martin Rowson spoke about the resistance of the paper
to publishing a cartoon of Mohammed, and said that any organisation that did so would face tremendous threats, without the safety in numbers that might have been hoped for in the aftermath of the attack two years ago. Rowson added that one of the great
threats to freedom of speech was the belief that the greatest human right of all was a right to not be upset.
Jim Fitzpatrick MP, who sponsored the room for the NSS, congratulated the Society on hosting the event and said that it was inspiring to
hear such a strong defence of free expression.