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A major ISP has promised a court challenge to Government plans to allow the cutting off of internet connections used by people accused of unlawful file sharing. TalkTalk said it will challenge the plans in the courts.

The Government commissioned a report on digital policy, Digital Britain, which did not recommend the cutting off of connections used by alleged file-sharers. The Department for Business, Innovation and Skills (BIS), which is headed by Lord Mandelson, later amended its consultation on that report, proposing disconnection as a policy.

Though Culture minister Ben Bradshaw told MPs last week that disconnections would happen only after a court order had been issued, there are no such guarantees in the Government's proposal.

Opponents of the plan have said that disconnection without proof to a court violates principles of justice, and have warned that disconnecting entire households because of the actions of one household member is not a fair response.

Internet service provider TalkTalk said that if it is issued with orders to disconnect its customers it will challenge their legality in the courts.

"The approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court. What is being proposed is wrong in principle and it won't work in practice. We know this approach will lead to wrongful accusations," said a TalkTalk statement.

"TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal. In the event we are instructed to impose extra judicial technical measures we will challenge the instruction in the courts," it said.

The company is campaigning against the proposal, which is not yet official Government policy but is widely reported to be the favoured option of Lord Mandelson.

Other countries have attempted to introduce such laws. The French government has tried a number of times but has hit legal snags several times.

The European Parliament is locked in a battle with the European Commission and Council over the issue. It has inserted into a Telecoms Package of reforms a clause declaring disconnection without court oversight illegal.

The Council and Commission have rejected the amendment and the three governing bodies will have to thrash out a deal on the issue before the end of the year or see the entire Telecoms Package fail.

TalkTalk has said that the methods proposed to find and cut off illegal file-sharers are flawed. It said that an internet connection's owner is not necessarily responsible for all use of that connection.

"[The measures] will do little to tackle illegal filesharing since the main offenders will easily avoid detection by using other people’s broadband connections to download content or encrypting their activity," it said in a statement. "Indeed the proposed measures will increase Wi-Fi and PC hijacking and so increase even further the chances of innocent customers being wrongly cut off."

The company surveyed 1,083 internet connections and found that many could be very easily broken into and used.

"Five per cent of connections were completely open (ie no security at all), 36 per cent used WEP which is easily hackable and 56 per cent used WPA which is currently fairly secure, though a vulnerability has already been detected meaning it could become hackable soon. Only three per cent used the most secure form of protection, WPA2," it said.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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