In Holland, semi-legalizing cannabis led to a flourishing trade in spliff dealing ‘coffee’ shops; in the UK, the communications regulator, Ofcom, may have given a similar boost to small businesses last week when it clarified the UK’s nascent law on illegal downloads. In around a year, give or take a few months of delays, UK ISPs will start sending out letters to individual subscribers they have identified as engaging in illegal downloading.
As well as irritating home users, many of whom point out that nuisance suits bought by firms such as ACS: Law have already highlighted the weakness of this method of identification, the new rule has worried providers of public Wi-Fi connections. Could a coffee shop, for example, be liable to a fine if their network is used by a customer to download illegal material?
Until now the answer has been unclear but - speaking at a recent Westminster Forum event - Justin Le Patourel, Head of Online Copyright at the regulator cleared things up.
"A library or a cafe which can demonstrate that it receives an internet service predominantly for the purpose of making it available to customers” shouldn’t be liable, Le Patourel said (full comments here). Not only can small businesses breath a sigh of relief, then, they can cheer: they could soon be overrun by torrent addicted customers happy to finally be able to air their hobby cum habit freely in public.
Umm… is this illegal?
That might be particularly true since, according research released by Ofcom recently, many Britons have very little idea what constitutes an illegal online activity. Of those surveyed, 26% said they could reduce the amount of illegal content they consumed if it was clearer what is actually legal and what is outlawed.
Confusion notwithstanding, the same research estimated that around one in six UK internet users had accessed illegal content at least once in the three
months studied.
Further helping the coffee shops' cause, the research revealed that
22% of those surveyed said that the threat of a letter suspending internet access would discourage them from accessing illegal – and presumably, for some, merely questionable - content at home.
ISPs must rule on responsibility
In what is becoming the very long history of the Digital Economy Bill, however, second guessing how the rules will actually be implemented is a mug’s game.
Although Ofcom strongly advised in the recent speech that providers of public wi-fi like cafes, libraries and shops should be considered communications providers under the terms of the act rather than subscribers, like individuals who can be sent letters of liability, it also stressed that the ultimate decision on this was not theirs but the ISPs’.
It will be up to the ISPs to decide whether the connection is being used for public wi-fi and is, therefore, not liable.
On the face of it, there is little reason for ISPs to disagree with the Ofcom assessment in this regard so the café happy judgement stands.
However, I can see one possible conflict of interest. Small businesses such as coffee shops often use home broadband connections to supply their patrons and liability under these connections’ terms and conditions is fairly black and white.
Just take a look at O2 broadband’s policy: “You’re responsible for all use of the Services… whether an unacceptable use occurs or is attempted, whether you knew or should have known about it, whether or not you carried out or attempted the unacceptable use alone, contributed to or acted with others or allowed any unacceptable use to occur by omission.” That seems to cover just about everything.
