In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

Under the E-Commerce Regulations, web service providers can be liable for material that they host if they have actual knowledge of unlawful activity, but they can avoid liability if they expeditiously remove the unlawful material.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “Despite this ruling, the best advice for any website service provider to avoid the risk of liability would be to have clear terms and conditions that allow it to take down material, and then to do so at the first suggestion that it is going to get caught in any cross fire.”

Details of the case can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2011/3031.html.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This result is interesting in light of recent court orders that the MPA has obtained against ISPs in the UK such as BT and Sky, under which the ISPs have had to block access to infringing content. The law needs to be clearer or at least applied in a more clear way across the European Union.”

BT’s initial response has been that it would need to be ordered by a court before taking action, in the same way that a court order was needed before Newzbin2 was blocked. Those downloading copyright content illegally may not be paying for the service they receive, but it is certainly costing the ISPs and industry bodies huge amounts in legal fees to try to prevent it.

BT estimated that the cost of implementing the court order was approximately £5,000, so it is unlikely that it would be worth the ISPs putting up a legal fight against any forthcoming court order. Indeed, the ISPs seem to have indicated that they would comply with any court order they receive. However, there is some doubt as to whether they have agreed to the width of the MPA’s requests for their consent to a court order. The move will only add fuel to the fire stoked up by critics of website blocking – the speed with which the pressure to block Newzbin2 has spread to other ISPs may also spread to other websites (such as The Pirate Bay) and lead to more argument, perhaps in court.

The initial ruling was given in favour of the film studios (whose copyright material had been copied) under section 97A of the Copyright, Designs and Patents Act 1988 (the Act), which provides that an injunction may be granted against an Internet service provider (ISP) that has “actual knowledge” of the use of its service to infringe copyright. The case will be of interest to ISPs and rights-holders, particularly since this is believed to be the first time that an order under section 97A has been made against an ISP.

BT has been ordered to use its Cleanfeed filtering system, which is currently used to block access to websites featuring images of child abuse, to block the website. Controversially, BT was also told to pay for the cost of implementing the court order. The judge said that since BT made money out of its users, it was right that it should foot the bill as part of the cost of doing business, and in any event the costs were proportionate. It left open the possibility of whether the costs would always be paid for by the ISP but in this case it would make sense.

BT and the film studios agreed that as software had been developed and was likely to be circulated by copyright infringers that could circumvent BT’s Cleanfeed system, BT’s blocking measures may have limited effect. However, the High Court judge said that the court order would still be justified if it meant that access to Newzbin 2 was prevented for only a minority of users.

This is the first time an order has been granted against an ISP under section 97A of the Act, but it is also interesting to note that the judge stated that he thought it unlikely that, following the implementation of the block, a BT user would be able to bring a claim against BT for breach of their Internet service contract with the ISP. However, that might be little consolation for BT, which merely thanked the High Court for providing ‘clarity’ on the issue.

No doubt, BT would have felt a bit aggrieved that the Court had refused to accept its argument that the order should be set aside or varied if the film studios did not apply within a reasonable time for the same injunction against other UK ISPs. The Court said that there was nothing in the law that made the injunction conditional on this action being taken. It was for the studios to decide on which remedies they would pursue and against whom.

BT would also no doubt have been unhappy at the refusal of the judge to give it permission to shut down Cleanfeed temporarily if it needed to. The judge said that it would only do that if the studios consented or BT obtained a court order.

So, all in all, a great result for the creative industries, but not a particularly good day in court for innocent ISPs.

The draft guidelines require that certain information should be provided to end users by:

-      national regulatory authorities (Ofcom in the UK), which are required by law to ensure that the relevant information is provided;

-      Internet services providers (ISPs), which are required at law to provide the relevant information; and

-      other third parties such as price comparison websites.

The information provided by the above entities should be formed on the basis of a common terminology to avoid end user confusion. The information provided relates to download and upload speeds (that are both actual and advertised), service availability, service quality, usage limitation (including data caps, download limits and fair use policies) and any traffic-management techniques used by ISPs to avoid network congestion.

The guidance is draft only – BEREC has invited comments from interested parties by 2^nd November 2011 – but, once finalised, will be a foundation block for ISPs in relation to how they provide their services.

The ISPs have now been granted permission to appeal by the Court of Appeal. It seemed that the Digital Economy Act was safe following the Court of Appeal’s initial decision to refuse permission to appeal, but this long-running saga now seems to have some more time left to run.

When an ISP advertises “unlimited” services, that term must only be used where a user will not incur an additional charge (or a suspension) for exceeding a specific usage limit. In addition, limitations that affect speed or usage of a service must be “moderate” and clearly explained in the advert.

When advertising the speed of services, ISPs must be able to demonstrate that a particular speed is achievable for a minimum of 10% of customers, and provide sufficient information to ensure that an average user is not misled. In particular, this information should state, where relevant, that a large number of users will not receive the speed advertised.

The guidance comes fully into effect on 1 April 2012 and advertisers should produce any new material with the guidance in mind.

The Government commissioned Ofcom to produce a report on how effectively the website-blocking provisions of the DEA could be enforced. The report considered:

-          the technical means available of blocking websites, which it concluded could not be 100% effective and could be widely avoided; and

-          how effective the DEA could be when compared to section 97A of the Copyright Designs and Patents Act 1988 (CDPA), under which an ISP’s actual knowledge of copyright infringement using its network could be grounds for the granting of an injunction by the courts. The report concluded that the DEA method would be slow, expensive and uncertain when compared to the CDPA route.

The Ofcom report concludes that any DEA system would be ineffective, and that website blocking should be only one of a number of alternatives to reducing copyright infringement online. The Government’s announcement follows a recent case considered by the High Court in which BT was ordered to block a copyright infringing website known as Newzbin 2 under the provisions of section 97A of the CDPA. Following the ruling, some questioned whether the relevant sections of the DEA are actually necessary – the courts seem capable of dealing with the issue of blocking on a case-by-case basis under the CDPA.

Whilst the section 97A method can also be long and expensive, the Newzbin ruling shows that the method is a realistic option. When compared with the DEA, its requirements are also much easier to understand and invoke – the CDPA requires the demonstration of actual knowledge on the part of an ISP that its network is being used for copyright infringing activities. The DEA, on the other hand, has a number of requirements, including having evidence of the amount and type of material available, as well as the need to show that, before a website can be blocked, the operator of the website as well as the ISP has been warned of the possible consequences of the infringing activity.

A report published by Ofcom, in conjunction with SamKnows (a free online resource that measures broadband speeds), has shown that nearly 50% of broadband users are paying for a package advertised with a speed of more than 10 Mbps but few packages actually achieved those speeds. The report showed that average broadband speeds were 8.2 Mbps, whereas the average advertised speed was 15 Mbps. Virgin actually scored  above its competitors in average actual speed compared with that advertised, but Ofcom has urged for there to be a change in advertising to allow customers to make better decisions of where to go for their broadband.

The ECJ has now delivered a dramatic ruling as follows:

• Where goods are advertised from outside of the European Economic Area and they have not been put on the market within the EEA with the brand owner’s consent, there is trade mark infringement even where the goods are just targeted as being offered or advertised for sale within the EEA without having to show further that they were actually put on the market in the EEA.
• It would be for a national court to rule on what was meant by “targeted”, but the mere fact that a website was accessible from a particular country would not be enough to satisfy that. The national court would need to consider the context of the offer, such as whether the territory was included in a list of countries to which the seller was willing to send the goods.
• Consumers do not “use” the brand in a trade mark sense when they use the eBay service. However, in this particular case, the people using eBay were deemed to be businesses as they were selling goods in the course of a trade, so they were “using” in a trade mark sense.
• The operator of an online marketplace like eBay does not generally “use” a third party’s trade marks (like L’Oréal’s) when its users advertise goods under those marks.
• However, its exemption from liability for its users’ actions under the E-Commerce Directive is removed when, as in eBay’s case, the operator of an online marketplace buys advertising keywords that are identical to the trade marks in order to optimise the presentation of the online offers. In that case, it is playing an “active role”.
• For the “active role” to apply and the operator to have liability, the trade marks have to be used on the site itself rather than in a sponsored link.
• Where an Internet service provider does not play an “active role”, such that it does not have knowledge or control of the unlawful advert, it is exempt from liability under the E-Commerce Directive, assuming it acts expeditiously in taking down the offending material as soon as it discovers the offending material.
• An online marketplace is not deprived of the exemption from liability merely because it stores offers for sale on its servers, sets terms of service, is paid for the service or provides general information to its users. However, the line is crossed if the online operator helps its customers in other ways such as by promoting or optimising its customers’ adverts. It was then no longer taking a neutral position and had taken an active role.
• Member States must ensure that trade mark owners can obtain an effective, proportionate, dissuasive injunction to stop infringers. This means ensuring effective protection for intellectual property rights. To do this, national courts should have the power to require online service providers to take steps not only to prevent a current infringement but also further infringement. It could be too much to expect ISPs to actively monitor all the data of its customers, but if it is aware of a particular problematic customer, it should not be able to wait until it is told again but there may, for example, be the need for an injunction ordering the ISP to suspend the account of the infringer so as to prevent further infringements by that user.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case creates two interesting developments. Firstly, taking an active role by optimising the material on its site could leave an ISP open to liability. Online intermediaries should therefore reduce their active involvement where they may be at risk of having liability for that content. Previously, they had assumed that they were not liable for their users’ activity unless they were informed otherwise.

“The second major impact is the wider-ranging injunctions mentioned by the ECJ. This could lead to actions by rights holders to try to get an injunction against ISPs to require them to shut down serial infringers’ accounts.”

Newzbin has now threatened to break BT’s Cleanfeed filtering system if BT attempts to block the site. BT has hit back and said that it would be appalled if that happened as Cleanfeed helped protect innocent from highly offensive and illegal content such as child pornography.

The MPA said BT was being targeted as it is the largest ISP in the UK. It may also be because BT uses the website-blocking software Cleanfeed to stop access to child sex abuse images, so it clearly has filtering technology available. The MPA hopes the injunction will force BT to block access to Newzbin in the same way it blocks access to websites hosting child porn , and this should then have a knock-on effect on other ISPs and website blocking.

This is a really interesting development and tactic by the entertainment industry in its long-standing cat-and-mouse battle against online copyright infringers. The MPA took action against Newzbin in 2010 in the UK, where Newzbin had been based, and the High Court ordered that Newzbin removed copyright-infringing material from the website. However, the company behind the website folder and a new version of the website set up by a phoenix company has since appeared operated out of the Seychelles. Due to the difficulties in taking action against that site there, the MPA is trying this new tactic. It will be interesting to see the outcome.

This case comes against the backdrop of the Digital Economy Act, which, when its provisions are fully implemented, would require ISPs to pass details of users who infringe copyright material to copyright holders so that they can take action against the infringers. ISPs would also have to suspend Internet access of the infringers.

The Act has been controversial ever since it was passed in early 2010, when it was rushed through Parliament so that it would become law before the General Election. BT and TalkTalk initially took action as they believed the Act did not comply with European Union Directives on e-commerce and privacy, and that it lacked proportionality. They have argued that the law would require them to restrict or suspend a customer’s Internet access even if someone else from outside that customer’s household, for whom the customer was not responsible, was using that customer’s Internet connection for file-sharing.

As part of the reforms, the ICO will also be given greater investigatory powers, under which the ICO will be able to demand information from Internet service provides (ISPs) and telecommunications companies to assist with investigations into possible breaches of the Regulations. The ICO will also be able to audit ISPs and telecommunications companies to ensure that they assist the ICO in these investigations.

The next step is for the case to proceed to the court to decide. The Advocate Generals’ opinions are usually followed by the court, but not always.

¨          A requirement to show substantial harm. The Government would like to see a minimum threshold to stop litigation over trivial matters.

¨          A new defence of responsible publication. There is currently a defence of qualified privilege that seeks to protect responsible journalism. However, that defence is complicated and there is concern amongst people outside the media that it does not protect them and that debate is consequently stifled. For the new defence to apply, publication would need to be in the “public interest”, although there is no proposed definition of what that phrase covers.

¨          Replacing the defence of fair comment with honest opinion. For this to apply, there would need to be an expression of opinion (rather than fact), the opinion would be on a matter of public interest, and the opinion would be one that an honest person could have held on the basis of a fact existing at the time of publication.

¨          Ensuring that the single publication rule applies to Internet publications. In other words, any claim would need to be brought within one year from the date on which the material was first published, rather than the current position of one year from any hit being made on the website (ie where there is a continuous rolling one year period).

¨          A clamp down on foreign people using the pro-claimant English law system to bring defamation claims even though they are not based here. The new law would require the claimant to bring an action in the English courts only if it was the most appropriate place to take place.

In addition to these proposed changes, there is discussion over whether the Bill should go further and include extra protection for intermediaries on the Internet, so as to require them to take part in preserving people’s reputations, but with less risk for comments made by posters through their facilities.

The consultation is open until 10 June and can be found here: http://www.justice.gov.uk/consultations/draft-defamation-bill.htm.

The Digital Economy Act requires Ofcom to introduce a system to reduce web piracy by ensuring co-operation between rights holders, such as record labels, and Internet service providers (ISPs).

Under the proposals put before Parliament, ISPs would need to warn a subscriber three times that they are breaking the law by file-sharing, after which, if the subscriber continues to be active in file-sharing, the ISPs must pass the details of the subscriber to the rights holder to allow them to enforce their rights.

The proposals split the cost of the system between copyright holders, who must pay 75% of the costs, and ISPs, who must pay the remaining 25%. The reasoning for this seems to be that it is copyright holders that benefit and therefore they should pay for the system, but ISPs are critical of the cost split as they do not benefit at all – they argue the rights holders should be responsible for the full cost of the system.

The proposals seem to be a step in the right direction for the Digital Economy Act. However, at the same time as the proposals have been laid before Parliament, the Culture Secretary Jeremy Hunt has asked Ofcom to review whether such a clampdown on file-sharing by blocking access to file-sharing, copyright infringing websites, or part of those websites, is practicable. Many critics of the Digital Economy Act argue that blocking websites is not workable and extremely expensive.

This Government seems to be doing what the last government should have done before passing the Digital Economy Act in a rush before dissolving Parliament – seeing if the law is actually viable. However, there is confusion at the way in which it is pressing on regardless, especially as there is a judicial review in play too.

It will be interesting to see how this story develops, and whether this is going to lead to more than just pornographic sites that the Government does not like being blocked at source.

The letter also seeks a change to the limitation rules. People have up to one year from publication to complain about defamatory material. However, in the online world, each new download is taken to count as a separate publication, which effectively means there is no time limit to bring claims for material that is accessible online.

For the full text of Ofcom’s decision see http://stakeholders.ofcom.org.uk/binaries/enforcement/competition-bulletins/closed-cases/all-closed-cases/cw_613/decision.pdf

The law is not automatically unfair, but the High Court may decide that it is when it undertakes the judicial review.

Ofcom notified TalkTalk and Tiscali of the breach under General Condition 11.1, which prohibits the sending of bills to customers unless every amount included in those bills represented the true extent of any service provided. Both companies had been billing customers for services that had been cancelled. Ofcom instructed the companies to provide refunds to customers, to stop any debt collection action (including legal proceedings), to pay customers’ reasonable costs and to repair credit ratings of affected customers. If the companies do not comply with Ofcom’s instructions, Ofcom can fine the companies up to 10% of each company’s turnover.

Ofcom’s press release can be found at http://media.ofcom.org.uk/2010/11/02/talktalk-and-tiscali-uk-breached-rules-to-protect-consumers

Scott Charney has compared the computer virus with public health warnings, under which certain people are quarantined to prevent the spread of a disease. He suggested that, in order to protect users from networks of infected computers under the control of cyber criminals, infected computers should be put in quarantine to prevent the spreading of a virus.

Such infected networks are known as botnets. When computers become infected with a virus, usually from an email attached or software download, it becomes part of the wider infected network. The network is then effectively leased out by those controlling it, to allow others to use it for circulating spam or attacking websites.

He suggested that, before connecting to the Internet, each computer should need to produce a health certificate to prove that it is uninfected. If the certificate cannot certify this, then the computer would need to download certain updates to upgrade its anti-virus settings. He also said that users should not be cut off entirely, but that further discussions would need to take place if his suggestion was taken up to allow flexibility for users who find viruses on their machines.

It’s all very well in theory, but is it fair to impact on and effectively punish the unsuspecting user whose computer has been hijacked? The debate will obviously rumble on…

See the full text of Scott Charney’s proposals at http://www.microsoft.com/downloads/en/details.aspx?FamilyID=062754CC-BE0E-4BAB-A181-077447F66877&amp%3Bdisplaylang=en

The Wi-Fi will be available in the ticket hall and on the Northern Line and Bakerloo Line platforms. It will not yet be available on the tube trains themselves. Although travel information will be available for free on the network, only users subscribed to BT Openzone will be able to access the internet as a whole.

See the link for the TfL press release http://www.tfl.gov.uk/corporate/media/newscentre/17198.aspx.

The decision of the court was not, however, based on any support for file-sharing. The judge was actually clear in his condemnation of unlawful sharing of copyright material. The decision was made due to the fact that the Irish Copyright and Related Rights Act 2000 is applicable to file-sharing in Ireland. The judge stated that the legislation made “no proper provision for the blocking, diverting or interrupting of Internet communications intent on breaching copyright”. As such, the powers of the court did not extend to obligating an ISP to block access to file-sharing sites. Instead, the courts’ only powers under Irish law was to require Internet hosting services to remove material that infringed copyright.

The judge maintained that the position in Ireland was not in line with relevant European law, but that it would need to be dealt with by the legislature rather than the courts.

The Commission has three gripes about the Data Protection Act 1998, Privacy and Electronic Communications Regulations 2003 and Regulation of Investigatory Powers Act 2000 and their alleged failure to comply with the requirements of the EU’s Data Protection Directive and Privacy and Electronic Communications Directive. They are:

• In the UK, communications can be intercepted not just where people have consented to the interception but also where the interceptor has reasonable grounds to believe that consent has been given. The EU laws require consent to be freely given, specific and informed.
• There needs to be an independent national authority to supervise the interception of communications, including to hear complaints.
• The sanctions for unlawful interception should be regardless of whether it was committed intentionally or not, but in the UK the prohibition is only for unlawful interceptions committed intentionally.

Things have now got a lot worse for the firm. Due to its notoriety, it became the target of a denial of service attack to bring its website down. As the firm was getting its website back up again, a large amount of person data – some of it sensitive personal data – was accessible through its public-facing site. The data then appeared on The Pirate Bay file-sharing site. The data involved over 10,000 people’s names, addresses, Internet addresses, credit card details and what they had been accused of accessing, including adult entertainment material. It also contained correspondence involving or relating to the accused people, including how much compensation had been paid.

The situation has drawn in Internet service providers such as BT and Sky, as much of the data had been supplied by them to ACS:Law. However, those ISPs claim that they had merely been supplying the data to the law firm in order to comply with their own legal obligations and the data that they had supplied was encrypted and secure.

The Information Commissioner is sharpening his tools as he looks for a high profile case to show off his new powers as a deterrent to others. Data controllers must take adequate steps to keep data secure. A serious breach of the Data Protection Act can now lead to fines of up to £500,000. Although no investigation has been undertaken yet, the Commissioner certainly sees that serious questions need to be answered, such as how secure the information was and how private information could have been accessed through the publicly facing website. The Commissioner will also be looking carefully at any encryption used, firewalls and staff training. The Commissioner said he could issue fines of up to £500,000 and although he would not put the firm out of business a company hit with a half a million fine would suffer real reputational damage. Ouch!

¨            Public communications services providers will need to notify the Information Commissioner’s Office if they are involved in a personal data breach. BIS proposes implementing this aspect of the Directive as is and enablng the ICO to publish guidance.

¨            People with a legitimate interest in preventing unsolicited emails may take action against spammers in the civil courts.

¨            Use of cookies would only be allowed if the user has given consent after having been provided with clear and comprehensive information about the purposes of the processing. This change in law has caused widespread concern amongst online advertisers. However, BIS appears willing to take a light touch on implementing this. The Government wants to make this legal change in a way that users would not have to consent to every cookie placed on their computer. The Government sees such a strict interpretation of the law as being a lose-lose situation with users’ online activity being interrupted without gaining anything, and advertisers and online service providers losing out if users do not choose to opt-in. The Government is planning to simply copy the Directive into English law and let the ICO give guidance and adapt to future technology. The Government would like to see browser settings made clearer to users and for users to be given clearly information about cookies and how to opt-out.

The consultation is open until 3 December 2010 and can be found here: http://www.bis.gov.uk/Consultations/revised-eu-electronic-communications-framework?cat=open.

The code of practice can be found here: http://stakeholders.ofcom.org.uk/telecoms/codes-of-practice/broadband-speeds-cop-2010/code-of-practice/.

This announcement comes on the back of other moves to increase civil liberties. The new Government has already said it would scrap the ID scheme and the associated National Identity Register, water down the national DNA database, regulate CCTV more, preserve jury trials and open up freedom of information laws.

‘This Government will end the culture of spying on its citizens,’ said Clegg. ‘It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop.’ No more detail of the plans have been given at the moment, but the Home Office said that the Government would review arrangements for retaining communications data to ensure records are not stored without good cause.

Kroes said that she subscribed to four principles put forward by the US’s Federal Communication Commission in 2005 in respect of this debate: for consumers to access lawful Internet content of their choice; for them to run applications and services of their choice; for them to connect devices of their choice; and for there to be competition. Kroes wants to consult to see what can be done to stop ISPs from discriminating against some traffic that could threaten those businesses and users’ freedoms.

The Bill contains these provisions:

• To allow the Government to make laws that could require Internet service providers to cut off the Internet connections of suspected copyright infringers and impose other technical measures on them. The burden of proof would be on the copyright owner to prove that the Internet user’s connection had been used for copyright infringement, and the Internet user would then have a right to appeal, but he would then have to show that he did not commit the infringing act or he took reasonable steps to prevent other people from committing the infringement via his Internet connection. Any introduction of this provision into law would require further scrutiny from Parliament first. The effects would be severe, particularly for whole households who would suffer because of the actions of one teenager or another person living there. People may also suffer if other people use their Internet connection for unlawful activity without their knowledge.
• The courts to have the power to grant orders to ensure that certain web sites are blocked if they satisfied that the sites have been used or are likely to be used in connection with copyright infringement. However, this new measure can only be introduced if Parliament has approved it and if the Government is satisfied that using the Internet for copyright infringement activities has a serious adverse effect on businesses or consumers and the sanctions are not a disproportionate measure. Blocking a particular site would be reserved for the most serious offenders.
• The right for copyright owners to notify ISPs if they suspect that copyright material has been infringed, and to have the right to receive anonymised lists of the Internet Protocol addresses (ie the web addresses) of the computers at the centre of the notifications.

Interestingly, this long-awaited measure for the benefit of the entertainment industry may be a matter of shutting the door after the horse has bolted. In this cat and mouse game, the copyright infringers are already ahead of the game. They may become ever more immune to the measures in this new legislation by increasingly using private networks that do not need a public web site in order to facilitate the file-sharing, and by the use of so-called proxy servers that hide the real identities in order to avoid detection.

As with English law, Australian copyright law forbids the doing or authorise of doing anything which infringes someone else’s copyright. The two legal systems have common roots, and the decision may therefore be persuasive (although not binding) on similar English court cases.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.upload-it.com, comments: ‘It’s understandable that the music and entertainment industries want to take action against people who allow their people to lose royalty monies. However, that’s not fair on the ISPs. It would be the equivalent of taking action against the Post Office because they don’t intercept pirated material sent in the post and stop it being delivered.’