Individuals will have to pay to contest copyright infringement warnings, Government says

Internet users who risk being blacklisted as illegal file-sharers will have to pay £20 to appeal against warning letters they receive about their behaviour, the Government has said.



Plans for internet service providers (ISPs) to serve customers suspected of online copyright infringement with warning letters about their behaviour were proposed by communications regulator Ofcom last year.

Under provisions within the Digital Economy Act (DEA) Ofcom is tasked with writing new regulations to combat people who engage in online copyright infringement.

In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.

Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist and copyright holders would have access to the list to enable them to identify infringers to take legal action, the draft code said. The plans also said ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.

An independent appeals body will be set up to hear appeals by individuals who receive notification letters, the draft code said.

The Government said that although the letters are not a "direct precursor to legal action" and are only intended to warn people that copyright holders could take legal action against them for repeated illegal behaviour, individuals do have the right to appeal against the notices.

To prevent the system being abused individuals will have to pay a fee of £20 to appeal, the Government said.

"It is clear that a large volume of vexatious or non bona fide appeals claims could drive up the cost of the appeals system by a substantial degree," the Government said in a report (10-page / 160KB PDF) outlining the next steps in implementing the DEA.

"Naturally, it would be undesirable for these costs to be driven so high that the system becomes unworkable. Therefore, we have concluded that subscribers should be required to pay a £20 fee to make an appeal," the report said.

The fee would be refunded if ISP subscribers win the appeal.

The Government said it was pressing ahead with plans to implement the 'initial obligations' of the DEA after taking advice (39-page / 419KB PDF) from Ofcom and following a judicial review of provisions of the Act earlier this year.

BT and TalkTalk had demanded a judicial review of the Act, claiming that it violated EU laws on privacy and electronic communications. The Privacy and Electronic Communications Directive governs what information can be gathered from electronic communications and says that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.

In April the High Court rejected their claim and the Court of Appeal has so far refused to hear an appeal. BT and TalkTalk have applied to overturn this refusal with a hearing expected this autumn. The Government said it is confident the ISPs' request will be rejected.

The High Court did rule that the DEA was unlawful in making ISPs responsible for some costs.

"The ruling stated that ISPs cannot be made responsible for the costs incurred by Ofcom or the independent appeals body in setting up, administering and enforcing the provisions of the DEA. We have amended the Sharing of Costs Order to require participating copyright owners to pay 100% of the qualifying costs," the Government said.

ISPs are still responsible for a quarter of the cost of letters written to users identified as potential copyright infringers. Rights holders that lodge complaints will pay the rest of that cost.

The DEA amendments are to be sent to the European Commission before Parliament can enact the changes. The Government said it hopes this will happen at the beginning of 2012.

Ofcom's finalised code will be published shortly and will also need to be sent to the Commission before Parliament can enact it, the Government said. "We hope that the first notification letters will be sent to subscribers by the end of 2012," it said.