Disconnected rights

Following copyright law leads you to unusual stories. That much is true. The story that broke through into the popular press last week (example: BBC), though, is quite iffy even by those standards. Yes, I’m talking about the (leaked) proposal in the UK to provide that those engaged in illegal filesharing would be ‘banned from the Internet’ (have their Net access contracts terminated); the Open Rights Group (one of the best NGOs on these issues in the world) have been talking about this for some time.

Now, there are certain rhetorical links here within criminal law (noting of course, though the music industry usually forgets this, that the bulk of copyright law is civil not criminal). A sanction for drink-driving can be a driving ban, et cetera. This, though, seems a different kettle of phish. There’s a direct link between the drink-driving (the core activity being driving) and the ban from driving (the core activity still being driving). And of course, the non-driver can take the bus or walk or cycle on the same road. On the other hand, the offence of copyright infringement (core activity being illegal copying or similar) does not have the same relationship to an Internet ban (the core activity being Internet use which includes many things). It’s bizarre, although in the context of banning students from chemistry because it might lead to bombs, I can see where it’s coming from.

The present-day Internet includes communication (email), socialising (IM, social networking etc), media consumption (websites, blog, streaming, etc), media creation (ditto), access to Government services, online commerce, etc. Now imagine that the sanction for a, let’s face it, relatively minor crime (copyright infringement, while economically significant, is hardly manslaughter), includes no use of the postal services, highly limited access to shops, no permission to read a newspaper, reduced ability to use public services or get public information, and more. That’s no minor sanction. Indeed, most prisoners can get things like reading material and send and receive letters! Not to mention that a Net disconnection has an impact on family members and others.

Of course, there are precedents for kicking people ‘off the Internet’ (Kevin Mitnick) and there are even those sane judges that have a sensible idea of online communications, in particular that looking at websites about violent jihad doesn’t make you a terrorist.

The enforcers here are your friendly local ISP (yes, those neutral non-state actors). They’ll be required to follow this system or face their own penalties. Something similar is on the agenda in France. Andres predicts that the ISPs will come out swinging. I hope so.

More fundamentally, this should see a rights-based analysis. For example, the ECJ’s decision in the Promusicae case (discussed here) shows how the rights of copyright holders are not the only things on the cards, and that privacy rights are important. In this situation, rights of expression, communication, participation and so on (all protected in the EU’s charter of fundamental rights and many other documents), are potentially being compromised. Is it proportionate to find that an internet service provider (required to act by statute) can take an action that has such wide-reaching consequences on such a basket of fundamental rights simply to vindicate the rights of the music industry? Is this a fair and proportionate ‘punishment’? I don’t accept that it is, and certainly not in the broad-brush terms that the UK proposal seems to put it.

Anyway, apparently this will be in a paper called The World’s Daftest Laws Creative Hub that’s coming out this week. Watch this space.