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The government has asked Ofcom to avoid giving alleged copyright infringers a general right of appeal against warning letters they may receive about their online activity in new regulations due out shortly, the telecoms regulator has said.

Under the Digital Economy Act (DEA) Ofcom is tasked with writing new regulations to help stop online copyright infringement. Last year it published a draft code of practice in which it outlined procedures that would allow copyright owners to identify illegal file sharers and take legal action against them.

The code stated that before that can happen internet users should first receive three warning letters from their internet service provider (ISP) if they are suspected of copyright infringements online, and that subscribers will be able to appeal against them.

An Ofcom spokesperson said that the government had asked it to "remove" the right of internet service provider (ISP) subscribers to appeal against receiving the letters if they had "any other reasonable grounds" to do so.

The draft code (74-page/365KB PDF) listed grounds of appeal but did not include that general right. That right appears to have originated subsequently, though it has never been officially published and neither the regulator nor the Department for Culture, Media and Sport (DCMS) would confirm it.

However a leaked copy of an apparently unredacted version of an Ofcom document appears to suggest that Ofcom had previously included a right for an alleged infringer to appeal if there were "any other reasonable grounds" to do so under the draft code.

"The grounds set out in the Act are non-exhaustive and we reflected this in our drafted Code by including an option to appeal on 'any other reasonable ground'," the apparently unredacted version (39-page/419KB PDF) of Ofcom's Digital Economy Act Online Copyright Infringement Appeals Process – Options for Reducing Costs report said. This version has not been confirmed as authentic by the government or Ofcom.

"This was intended to provide an efficient mechanism through which to avoid a lengthy revision of the code should subscribers find additional, but reasonable, grounds for appeal as technologies and consumer behaviours evolve. We understand that government believes we should not include this mechanism in the final code," the document said.

"Nevertheless, we think it offers an opportunity to minimise Ofcom's costs (which are passed through to copyright owners) and potentially avoid the need for a revised code to be renotified and resubmitted to Parliament," it said.

Neither Ofcom nor the DCMS would confirm the legitimacy of the sections of the report, which originally contained redactions. The official Ofcom report (39-page/377KB PDF) was published earlier this month.

Details of illegal file-sharers who receive more than three letters in a year would be added to a blacklist and copyright-holders would have access to the list to enable them to identify infringers to take legal action, Ofcom's draft code said. The plans also said ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.

An independent appeals body has to be set up to hear appeals by individuals who receive the warning letters as part of Ofcom's code, according to provisions of the DEA.

In the draft proposals, Ofcom said that an alleged infringer may have grounds to appeal if an apparent infringement is not in breach of copyright or if their IP address from the time of the alleged incident "does not relate" to the one listed in the notification letter they received.

Other grounds of appeal may arise if the alleged ISP subscriber was not responsible for and "took reasonable steps to prevent" others using their "internet access service" to infringe copyright, or if there was "an act or omission by a qualifying ISP or qualifying copyright owner amounts to a contravention of the code or of an obligation regulated by the code", the draft code said.

Ofcom also said that ISP customers could bring an appeal if there was "any other ground on which a subscriber chooses to rely as to why the act or omission should not have occurred".

Individuals will have to pay a fee of £20 to appeal, although that fee will be refunded if they are successful, the government said earlier this month.

The Department for Culture, Media and Sport (DCMS) said that the government would not comment on the code ahead of the announcement, but a spokesman did say that it would "not be too much longer" until it is finalised.

"It is entirely within the government's remit to make changes to the code," an Ofcom spokesperson said.

Copyright © 2011, OUT-LAW.com

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

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