Digital Economy Act: Don’t Forget The Wi-Fi!

One month into the new powers granted by the Digital Economy Act, it is time to ask: will it really spell the end of free public Wi-Fi?

The Digital Economy Act raised the anger of web users with its threat to clamp down on illegal file sharers, allowing copyright owners to have them cut off the Internet. But protesters also warned that the Act could mean the end of free public Wi-Fi – and potential problems for consumers running an unsecured Wi-Fi access point – as hotspot owners could be liable for any illegal activities carried out by their customers.

Liability Grey Area

You will remember that back in November, a pub landlord was hit with an £8,000 fine after he was successfully sued by the content rights holder. This was because one of his customers had been caught downloading copyright content using the pub’s Wi-Fi hotspot.

Unfortunately, it seems that the law surrounding open Wi-Fi networks and the liability of those running them, is something of a grey area. It is difficult or (let’s face it) impossible to stop someone intending to use your Wi-Fi connection for illegially downloading content, so most Wi-Fi hotspots use a terms and conditions screen to warn users to play by the rules.

Wi-Fi sharing is widespread: Moneysupermarket.com recently found that 15 percent of web users had admitted to using someone else’s web connection to surf the web, with some admitting to emailing and downloading large files, as well as streaming content using online services such as the BBC iPlayer.

You can avoid the problem by not sharing your hotspot. But will the small business owner or average parent know how to enable security on their wireless ADSL router? Will they know the difference between  ‘WEP’ and ‘WPA’? And don’t forget, anyone with a decent knowledge of wireless networks will be able to decrypt a WEP key in under a minute with the help of easily obtainable tools from the Internet.

And for many small business owners such as coffee shops, offering free Wi-Fi has become an expected part of their service.

The Digital Economy Act

The introduction of the Digital Economy Act means that all Wi-Fi hotspots have been declared “public communications services”, which means the owner of the free Wi-Fi hotspot will be held responsible for the misuse of the connection. Before the Act was passed, the Department for Business Innovation and Skills published an explanatory document (Word format)setting this out.

Another implication for the Wi-Fi hotspot owner is that the public connection provider is required to maintain records, going back 12 months, of the communication that has taken place on the network.

Now obviously most major high street retail chains will use a service provider such as The Cloud, or BT Openzone, and these ISPs, already unhappy with the threat to cut off file shares, will have to shoulder the burden here, although the extra costs will no doubt be passed onto the owner.

But what if you are a family run pub, or small shop hoping to offer your customers a free and open Wi-Fi hotspot in order to tempt more custom? These types of organisations are usually small, and do not have any corporate backup or technical expertise. The last thing they need is an additional cost burden.

Unfortunately, clause 14 of the Act states that customers must take “reasonable steps” to stop their network being used for illegal purposes. But what does the term “reasonable” actually mean? And will small businesses take steps to secure their hotspots? Most, I suspect, will simply opt not to have a hotspot in the first place, and like many things in the UK, legislation once again will make offering a service overly prohibitive.

Common Sense Required

Many small businesses are struggling to just make ends meet, and no company in this position would be willing to risk prosecution under the act for what someone else has illegally downloaded on their network.

The problem is that the Digital Economy Bill was not even properly debated before it was passed. The Act appeared to have been rushed through Parliament in the so-called wash-up period before the general election.

Ofcom, the ISPs, and the legal establishment, are working on procedures for any action against illegal copyright infringers. They must not forget the position of those running small Wi-Fi hotspots – and it is time for them to inject some much-needed common sense.