So far in the UK we are not aware of any individual being prosecuted for the illegal downloading of videos, music and other media but all could be set to change in view of the Digital Economy Act 2017 which received Royal Assent on the 27th April 2017. The Act amends existing copyright laws as it now requires that in addition to either intending to make a financial or monetary gain for themselves, they can also be guilty of an offence if they communicating infringed work to the public and “knows or has reason to believe that communicating the work to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss”.
Arguing that you are merely providing a free service for those who are unable to afford subscribed service such as Netflix, Sky or BT Sports and consequently that there would be no “loss” is unlikely to succeed as the prosecution now need only to prove that there is a “risk of” and not that there has been an actual loss.
Who is the Intended Target of the Digital Economy Act 2017?
However it is unlikely that the end users, who are using websites to stream movies, music or boxed sets, are unlikely to face prosecution and the legislation is targeted at the suppliers. It was reported in January that end users who are known by their providers to have been engaged in copyright infringement will receive warning letter (also referred to as subscriber or educational alerts or emails). This will be done by the four main providers who have signed up to the Voluntary Copyright Alert Programme a scheme where right holders will identify the ISP addresses of infringers and provide them to the providers who in turn will issue the warning in a way of discouragement rather than imposing punishment.
However, The Federation Against Copyright Theft has warned that “While end-users are not our primary target, they may get swept up in one of our operations and become part of the whole criminal investigation, which could lead to prosecution alongside suppliers, retailers and importers.”
Parliament clearly also intended that there should be some deterrent in the Act to those who deliberately provide illegal content as the sentences have increased significantly from 2 to 10 years imprisonment. So far no sentencing council guidelines have been published but it is inevitable that those who stream copyrighted content to the masses are now unlikely to escape a custodial sentence and may face prison sentences of several years as well as huge financial penalties both in fines and through Proceeds of Crime Act confiscations. In a recent case Malcolm Mayes received a suspended sentenced for supplying “fully loaded” Koi boxes which allowed user access to illegal content. In addition he was also ordered to pay costs of £170,000 and POCA order was made for a further £80,000.
As well as targeting illegal content, the Act also provides other offences:
Automatic Compensation for Failure to Meet Performance Standards.
So if your broadband provider advertises 52mbs but you are receiving less, you could be eligible for automatic compensation for that deficiency in service.
Police Power to Remotely Disable Mobile Phones
Sounds a bit sci-fi but section 107 requires that the police are now able to apply to a court for a Drug dealing telecommunications restriction order which is an order “requiring a communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices in connection with drug dealing offences” which includes disabling phones which the police believe are being used by dealers.
Providers Prosecuted for Allowing Children Access to Porn
Section 14 of the Act provides that a person contravenes the subsections if he or she “makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.”
The statutory instrument which will set out what is or is not be regarded as “a commercial basis” is yet to be written, so watch this space.