The Bill proposes that the Government can introduce new measures to punish people they think are infringing copyright without having to prove their case in court. This so-called secondary legislation side-steps any debate, oversight or public scrutiny.

“We don’t support copyright infringement in any way but we live in the real world and understand that no amount of policing and censorship will solve the problem,” said Charles Dunstone, CEO of TalkTalk Group. “It doesn’t matter how many websites are blocked, how many services are shut down or how many individuals are pursued, people will always find ways to access copyrighted content for free.

“There is an army of ‘Robin Hoods’ out there developing tools which allow completely undetectable access to content. No amount of monitoring can spot it. Shut one service down and twenty will pop up in its place.

“As things stand, victims of Wi-Fi hijacking will be caught in the cross-hairs while the most persistent offenders will remain undetected.

“Until now the proposed legislation could be best described as unwieldy and ill-conceived. In addition it now looks to deny people freedom of speech and infringe their basic human rights. Current legislation allows for people to be taken to court and a case proved against them before action is taken and that must be maintained. ’’

TalkTalk believes that to reduce illegal filesharing, music and film fans must be encouraged back to legal services through education and by making content available in a form and at a price that people find acceptable. TalkTalk’s research shows that over 85% of people think there is not enough legal music and film content available on the Internet at a fair price.

In the meantime TalkTalk makes these pledges to its customers:

• Unless we are served with a court order we will not surrender your details to rightsholders. We are the only major ISP to have taken this stance and we will maintain it.
• We will continue to fight this draconian legislation as it makes its way through Parliament.
• If we are instructed to disconnect your account due to alleged copyright infringement we will refuse to do so and tell the rightsholders we’ll see them in court.

TalkTalk’s petition against the legislation and details of how you can make you voice heard can be accessed at www.dontdisconnect.us

That is the view of telecoms and copyright lawyers contacted by TalkTalk, the UK’s biggest broadband provider to homes and a consistent critic of the Government’s plans to tackle internet piracy.

Their interpretation of the new EU Telecoms rules, agreed in Brussels on Thursday, deals a serious blow to the Government’s proposed anti-filesharing measures which allow disconnection without a proper legal process.

Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna, said: “The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters.

“They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a ‘fair and impartial’ procedure as article 1(3)a of the new Framework Directive demands.

“At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case. If such an essential safeguard is not part of the UK measures then BIS would be in contravention of the new European law.”

The EU agreement states that restricting a user’s internet access may only be imposed “with due respect for the principle of presumption of innocence and the right to privacy“, and as the result of “a prior, fair and impartial procedure…”

“I am extremely concerned that much of the UK government’s proposals as they stand would be illegal,” said Paul Brisby, a leading telecoms lawyer at Towerhouse Consulting. “For the UK to impose a requirement to cut off end-users without a prior hearing would not be permissible.”

Andrew Heaney, director of strategy and regulation at TalkTalk, said: “These European rules have now put into legal language what fair-minded people instinctively knew was right and just.

“No one should be disconnected from the internet unless it is established whether they broke the law through an impartial legal process starting with a presumption of innocence. The accuser has to prove guilt and if guilt is established then any penalty must be tailored to fit the individual circumstances.

“The need for a fair process is critical because the evidence that rightsholders use can only identify the broadband connection not the individual filesharer. This means that millions of account holders are at risk of being wrongly punished due, for instance, to unauthorised wi-fi hijackers using their connections.

“Although the new rules are not yet UK law, we call on the government to respect the spirit of what is intended and to drop its draconian plans to disconnect users without a proper judicial process.”

TalkTalk’s campaign against the proposed measures – www.dontdisconnect.us – has gathered considerable momentum. To date 1,615 people have signed the campaign’s petition on the No. 10 website.

Over the past few weeks millions of X Factor fans have been exposed to ‘brightdancing’ – using torches or mobile phones to create images out of light. These are used to illustrate TalkTalk’s sponsorship of the show.

The specially commissioned brightdance from Michael Bosanko, the original brightdancing artist, features a pair of scissors cutting a computer cable. The film will be used as part of TalkTalk’s ongoing online campaign against Lord Mandelson’s plans and may also be used in an X Factor ad break

TalkTalk believes Lord Manelson’s approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court.

What is being proposed is wrong in principle and it won’t work in practice. We know this approach will lead to wrongful accusations.

The unintended consequence of Lord Mandelson’s plan will be to encourage more wi-fi and PC hi-jacking and expose more innocent people to being penalised.

TalkTalk will continue to resist any attempts to make it disconnect its customers unless directed to do so by a court or recognised tribunal.

In the event we are instructed to disconnect or ‘throttle’ customers’ connections we will challenge the instruction in the courts.

Last week we launched a campaign against Lord Mandelson’s plans called Don’t Disconnect Us (www.dontdisconnect.us). We urge people to visit the website and to sign the petition to make their opposition to these draconian and disproportionate measures known.

The approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court.

What is being proposed is wrong in principle and it won’t work in practice. We know this approach will lead to wrongful accusations.

The unintended consequence of Lord Mandelson’s plan will be to encourage more wi-fi and PC hi-jacking and expose more innocent people to being penalised.

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.

In the event we are instructed to impose extra judicial technical measures we will challenge the instruction in the courts.

Last week we launched a campaign against Lord Mandelson’s plans called Don’t Disconnect Us (www.dontdisconnect.us). We urge people to visit the website and to sign the petition to make their opposition to these draconian and disproportionate measures known.

Over the past few weeks millions of X Factor fans have been exposed to ‘bright dancing’ – using torches or mobile phones to create images out of light. These are used to illustrate TalkTalk’s sponsorship of the show.

Today we are launching an online campaign using a specially commissioned bright dance from Michael Bosanko, the original bright dancing artist. It features a pair of scissors cutting a computer cable. The film may also be used in an X Factor ad break

Closer inspection of what the Secretary of State said suggests he is simply referring to the process rights holders will have to go through to get the details of suspected of copyright infringers. Having got the information they will still be in a position to compel ISPs to disconnect or throttle alleged offenders without having to go back to the courts.

This is not a concession. The proposals are as wrong-headed as ever. Alleged offenders will still be presumed guilty and have to prove their innocence. Innocent broadband customers will still be caught in the cross fire, accused of wrongdoing when they are in fact simply the victims of Wi-Fi hijacking. The proposals are wrong in principle and they won’t work in practice. Join the campaign against these draconian measures at www.dontdisconnect.us.

The study coincides with today’s launch of a campaign against Lord Mandelson’s plans to disconnect people suspected of illegal filesharing without a trial.

Don’t Disconnect Us (http://www.dontdisconnect.us) has been initiated by TalkTalk, Britain’s biggest provider of broadband to homes. The campaign’s website sets out three principal objections to Lord Mandelson’s plans:

1. It by-passes the courts and gives rightsholders quasi-judicial powers;

2. It exposes millions of people to false prosecution since it is based on an approach where those suspected of illegal filesharing will be presumed guilty and have to prove their innocence in order to avoid being falsely disconnected;

3. It will do little to tackle illegal filesharing since the main offenders will easily avoid detection by using other people’s broadband connections to download content or encrypting their activity. Indeed the proposed measures will increase Wi-Fi and PC hijacking and so increase even further the chances of innocent customers being wrongly cut off.

The risk of innocent people being disconnected is not hypothetical. Consumer organisations such as Which? have been contacted by dozens of people who have been wrongly accused of filesharing by rightsholders who used a similar method to the one Lord Mandelson is suggesting.

Last week a knowledgeable Parliamentary committee, Apcomm, came out squarely against Mandelson’s disconnection plans saying “this approach [disconnection] to dealing with illegal file-sharing should not be further considered.”

The Don’t Disconnect Us website provides a hub for people to learn the latest views on tackling illegal filesharing from around the world, a forum to discuss the issues and a link to a petition on the No 10 website where opposition to the plans can be registered.

The survey of 1,083 Wi-Fi connections, which was conducted by TalkTalk, found that 5 per cent of connections were completely open (ie no security at all), 36 per cent used WEP which is easily hackable and 56 per cent used WPA which is currently fairly secure, though a vulnerability has already been detected meaning it could become hackable soon. Only 3 per cent used the most secure form of protection, WPA2.

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To demonstrate the point, an internet security expert from TalkTalk today visited The Highway, a residential road in Stanmore, Middlesex.

Within a couple of hours he had identified 23 wireless connections on the street – more than one third of the total – which are vulnerable to Wi-Fi hijacking. These connections are either completely unsecured (6%) or use WEP technology (28%) which many users think is secure but is in fact easily hackable by anyone with a laptop computer.

To show how vulnerable people are to unauthorised filesharing, he downloaded music files from two connections, including Barry Manilow’s hit Mandy and the soundtrack from the 1992 film Peter’s Friends(1).

Of the 68 Wi-Fi connections on the road only one used the strongest available security (WPA2). The majority (65%) used WPA security which may become hackable in the future. Indeed a vulnerability has already been discovered.

The Highway is actually comparatively well protected. A Wi-Fi survey of central Ealing in West London conducted on 11th October found 41% of 1,083 Wi-Fi networks were vulnerable to unauthorised use.

Connecting to a Wi-Fi network is just one way that illegal filesharers can use other people’s internet connections, leaving innocent people vulnerable to disconnection. PC hijacking is another.

The risk of innocent people being disconnected is not hypothetical. Consumer organisations such as Which? have been contacted by hundreds of people who have been wrongly accused of filesharing using a similar method to the one Mandelson is suggesting.

“The Mandelson scheme is wrong-headed and naive,” said Andrew Heaney, Director of Strategy and Regulation at TalkTalk. “The lack of presumption of innocence and the absence of judicial process combined with the prevalence of Wi-Fi hijacking will result in innocent people being disconnected.

“Also, the plan won’t work in practice. It will actually encourage offenders to use Wi-Fi and PC hijacking more frequently and so increase the chances of innocent users being falsely accused and disconnected.

“It is absurd to make people, in effect, legally responsible for the traffic on their internet connections and require them to prevent any unauthorised traffic.

Will people be required to upgrade to WPA and throw away much of their equipment such as games consoles that can only run using WEP or open Wi-Fi networks? What will happen if WPA is compromised in the future; will the whole country have to upgrade their Wi-Fi equipment again to avoid the risk of prosecution?

“TalkTalk acknowledges that there is a problem with illegal filesharing and that solutions must be found. First and foremost the content industry must develop new business models to make content more easily available and more affordable.

“We are happy to play our role alongside this but we will resist any approach that does not protect the innocent.”

TalkTalk is currently developing a series of controls which will give parents the ability to block access to certain filesharing sites through their connections. Whilst it won’t stop all illegal filesharing it could help significantly to reduce it. We also advise our customers on how they can secure their Wi-Fi networks.

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Barely two months after the publication of largely sensible and pragmatic measures to tackle the problem (in the Digital Britain Report) Lord Mandelson has, it seems, caved in under pressure from powerful lobbyists in the content industry.

TalkTalk supported proposals outlined in the Digital Britain Report to address illegal filesharing through education, letters to alleged offenders and court-based action against serious offenders.

We believe that the new technical measures, which have been announced before the original proposals have even been tested, will breach fundamental human rights and result in innocent people being disconnected or, worse, prosecuted. What’s more, they will not work.

Disconnecting alleged offenders will be futile given that it is relatively easy for determined filesharers to mask their identity or their activity to avoid detection. The evidence that is used to identify offenders is unreliable due to the prevalence of multi-users per account and wifi-hijacking and so will result in innocent customers being cut-off from broadband.

We also believe that the new measures will breach fundamental human rights to privacy, data protection and basic freedoms from intrusion and monitoring. If disconnection is carried out in an extra-judicial way alleged offenders will be denied basic legal rights such as right of appeal and the ability to see and interrogate the evidence. This is a view shared by consumer groups.

TalkTalk will strongly resist any attempts to introduce laws that would put obligations on ISPs to act as ‘internet police’ and implement technical measures against their consumers.

Furthermore, obliging ISPs to pay for implementing these measures will impact directly on customers, the majority of whom do not fileshare. Why should the majority of law-abiding broadband users be forced to pay a ‘tax’ on the outdated business models of the content industry?

We recognise the importance of persuading people currently engaging in illicit file-sharing to migrate to lawful services and are supportive of the emphasis in the Digital Britain Report for the need for new business models.

We are worried that an intrusive approach will prevent cooperative new business models from evolving as ISPs and content providers will be effectively set against each other, and there will be less incentive for rights holders to adapt. This will mean that the underlying problem will perpetuate for much longer and the development of internet services in the UK will be detrimentally affected.

TalkTalk believes that the most effective way to deal with this problem is the process of formal written notifications along with the obligation on ISPs to disclose anonymous data on repeat infringers as recommended in the original Digital Britain Report. This will allow rights-holders to take targeted sanctions with proper judicial protections.

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