TalkTalk Threatens Legal Action Over Mandelson’s File-Sharing Strategy
But TalkTalk’s challenge to Mandelson’s plan to disconnect illegal file-sharers depends on EU laws that are still under debate
Internet service provider TalkTalk has threatened to take legal action over Lord Mandelson’s plan to disconnect illegal file-sharers – but lawyers say the ISP’s case depends on European laws that are not yet passed.
TalkTalk’s executive director of strategy and regulation Andrew Heaney said in a blog post that Mandelson’s approach was “based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court”. He also warned that “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.”
The business secretary announced yesterday in a speech at the Cabinet Forum that the government’s “three strikes” policy on illegal file-sharing will be implemented by July 2011, unless his initial strategy of issuing warning letters brings about a a 70 percent reduction in online piracy. However, he emphasised that “technical measures will be a last resort and I have no expectation of mass suspensions resulting.”
Mandelson’s hard-line approach to file-sharing has already been heavily criticised by ISPs such as BT and TalkTalk, which have complained about the high costs of implementing such a scheme as well as the difficulties of enforcement. TalkTalk has even launched its ‘brightdancing’ ad campaign as a protest against Lord Mandelson’s plans to disconnect people accused of internet piracy without a trial.
Earlier in the month TalkTalk staged a demonstration in Middlesex, in which an internet security consultant used Wi-Fi hijacking to download content, including Barry Manilow’s hit Mandy. Within a couple of hours he had identified 23 wireless connections that were vulnerable to Wi-Fi hijacking on a single street . The aim was to demonstrate the difficulties of proving who is to blame for an illegal download, and that Mandelson’s plan to disconnect offenders could result in a large number of innocent victims.
However, the feasibility of TalkTalk having a serious legal case against the government over file-sharing depends largely on the outcome of formal talks in the European Commission to resolve differences of opinion on internet piracy laws. On 6 October, European telecoms ministers formally rejected the parliament’s key amendment – the now infamous Amendment 138 – which allowed governments and rights holders to force UK ISPs to disconnect their customers from the internet.
In its place, the new provision reads that “Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appropriate and proportionate within a democratic society… Any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected.”
Rob Bratby, partner in technology and media law firm Olswang, told eWEEK Europe that some kind of compromise should be reached in Europe over the next couple of months. However, with the date of the government’s digital economy bill in late November fast approaching, the question is whether there is enough time for Mandelson to unite public opinion.
