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Gov net disconnections could breach EU law

May scupper free Wi-Fi too

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The Government's Digital Economy Bill could be in breach of EU laws, according to an internet law expert. Professor Lilian Edwards has also warned that the Bill could make it impossible to operate a free wireless network legally.

The Bill, published last week, contains an outline of the Government's plans to terminate internet connections that record labels have said have been used for illegal file sharing.

A previously unnoticed provision in the Bill could mean that it is impossible to operate a wireless, or Wi-Fi, network without the risk of breaking the new law, according to Edwards, who is Professor of Internet Law at the University of Sheffield.

The Bill says that action can be taken not just against someone suspected of infringing copyright but also against "a subscriber to an internet access service [who] has allowed another person to use the service, and that other person has infringed the owner’s copyright by means of the service".

"A lot of people secure [their Wi-Fi networks] but a lot of people don't," Edwards told technology law podcast OUT-LAW Radio. "I think there is a strong likelihood that having unsecured Wi-Fi might well be seen as allowing other people to use their service which means that effectively you would become responsible for their alleged copyright infringement."

Under the Bill it would be impossible to run a free Wi-Fi network without the fear of being liable for strangers' copyright infringements, she said.

"The answer to that is maybe [the connection owner] has to secure his Wi-Fi," said Edwards. "But if that's so you are making that the new law, and that points against other policy goals like digital inclusion. You will make life very difficult not just for individuals but for institutions that like to offer public Wi-Fi like hotels and cafes."

"That may all have to be locked down so that people will avoid copyright liability and that seems like a sad loss," she said.

A spokeswoman for the Department of Business, Innovation and Skills (BIS) said that if people believed they had been unfairly targeted they could appeal against a ruling, though the basis of any appeal is unclear if the law states, as Edwards claims, that a Wi-Fi operator is legally liable for others' actions.

BIS also appeared to suggest that the problem be solved by Wi-Fi operators policing their networks. "Many premises that offer public Wi-Fi access already disallow access to unlawful file-sharing sites," said the BIS statement. "Software which limits or prevents access is freely available and easy to install and we would anticipate any responsible organisation offering Wi-Fi access would take action if it appears their connection is being misused."

Edwards said that the Bill itself may break European law. The E-Commerce Directive, which was made UK law as the E-Commerce Regulations, give network providers immunity from liability for the actions of their users while they are ignorant of those actions.

"This legislation is potentially in breach of the E-Commerce Directive, Articles 14 and 15 in particular, in which Europe has said that hosts and service providers are not to be liable for the acts of others who are the end users of their services," she said. "I think it hasn't fully been thought through whether that might be a competing principle."

"In the Wi-Fi example isn't that person, the Wi-Fi provider, meant to be protected against the illegal acts of others over whom he has no real effective control?" said Edwards.

The Directive also says that operators have no obligation to monitor networks in the way suggested by BIS.

"Member States shall not impose a general obligation on providers … to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity," says Article 15 of the Directive.

The BIS spokeswoman said: "On the E-Commerce issue, we believe our proposals are fully compliant with all EU regulations."

Copyright © 2009, OUT-LAW.com

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

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