PART 3: This series, written by Will Tovey of the Pirate Party UK, is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. Some parts may be legally technical. It has been reproduced with the permission of the author.
The Digital Economy Act 2010 puts in place a framework for taking actions against those with Internet subscriptions who have been accused of infringing copyright. As a result, these provisions include an appeals process through which a subscriber can contest the allegations made against them.
Subscriber Appeals
Section 124K of the Communications Act 2003 (as amended by the Digital Economy Act) is dedicated to setting up the rules for an appeals process. The process is different depending on whether the subscriber is appealing against a part of the Initial Obligations Code or a technical measure. In both cases, subscribers have the right to appeal to a person who is independent of ISPs, copyright owners and Ofcom as far as the appeal is concerned (under Section 124K (2) of the Act). In the case of technical measures, a subscriber also has the right of appeal to the First-tier Tribunal, most likely the existing Copyright Tribunal defined by Chapter VIII of the Copyright, Designs and Patents Act 1988. It should be noted that while decisions of the Tribunals can be appealed to the Courts, there is no direct route to a Court in either case.
Burdens of Proof
As the proceedings involved are of a civil nature the allegations need only be proved “on the balance of probabilities“. Essentially this means that it must be more likely the accusation is true than it is not. This contrasts to criminal proceedings where things must be proved “beyond reasonable doubt”. In terms of who must prove what, according to Section 124K (5) the following must be proved by either the copyright owner or the ISP:
- that the infringement occurred and
- that the report is about the subscriber’s IP address
Under 124K (6), it is up to the subscriber to show:
- that the infringement was done by someone else, or
- that they took reasonable steps to prevent others infringing copyright through their service
if they wish to use either as a defence. However, at no point are the reasonable steps defined in the Act.
Results of an Appeal
Under 124K (7) whoever is determining the appeal can award compensation to a subscriber (to be paid by either the copyright owner or ISP) in the event the appeal finds in their favour and reimburse them for reasonable costs, unless it would be “unjust” to do so – 124K(9). In the case of technical measures, the appeal also has the power to confirm, withdraw or replace any technical measure imposed where it is seen fit to do so – 124K(9)(a) – or just hand the decision over to Ofcom – 124K(9)(d). The final part makes it clear that no technical measures can be imposed until the time limit for bringing appeals including those to the Tribunal has ended and any appeal has ended – 124K(11). However, it does suggest that a subscriber can waive their right to appeal, but not details are given on why or how this would occur.
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