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ACS Law case casts doubt over DEA evidence

By Stewart Mitchell

Posted on 9 Feb 2011 at 14:33

A judge has highlighted the weakness of the evidence that the Government intends to use as justification for blocking internet access under the Digital Economy Act, according to the Open Rights Group.

The ruling came in a case before the Patent County Court, following from controversial firm ACS Law's use of IP addresses as evidence of people downloading content unlawfully - and using that to demand settlement payments or face court.

The judge in the case found that – as PC Pro found last year – IP address alone is not evidence against an individual user.

The judge's conclusions cast a shadow over how the Government will enforce the proposed three-strikes rule that could see end-user internet access restricted for repeated downloading of copyright material.

“Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all?" Judge Birss QC questioned, before answering his own poser.

“Even if it is proof of infringement by somebody, the fact that someone may have infringed does not mean the particular named defendant has done so."

Going further, the judge suggested that ACS Law had "materially overstating the untested merits" of their proof, which was perhaps one reason the law firm pulled the plug on its cases.

According to rights campaigners, the fact that the DEA might continue to use this evidence when a judge has thrown it out underlines the potential folly of the Act.

“The evidence used against alleged infringers, as things stand, is weak,” said the Open Rights Group's Peter Bradwell in a statement. “But instead of leading to court action, as in the case of ACS Law, under the provisions of the Act … it could see people having their internet connections slowed down or suspended.

“This is on the basis of very problematic evidence - crucially it's without the judicial oversight that has ultimately rumbled ACS Law.”

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User comments

The Only Trouble Is...

Maybe the government will take a new tack on this.

For example, they may use the model they use for car drivers and keepers.

For example, you may have to buy a licence to drive on the information superhighway. You may have to pass basic tests on computer security. And if you are the keeper of the car (or the net connection) the licence makes you responsible for the use of that car by other persons you choose to allow to use it.

If an infringement takes place, such as a speeding offence, the onus is on you as the keeper to either say you were in charge at the time, or declare who was. With fines for non-compliance.

Just a thought...

By Penfolduk01 on 9 Feb 2011

Internet user licence - unfortunately we seem be heading exactly that way. It will probably start in China, US and then UK will follow shortly.

By Lomskij on 10 Feb 2011

hm, maybe

@Penfold, your analogy is a little spurious. A driving licence is closer to having the right to use the internet, whereas the V5 of a car is closer to owning the phoneline that is used for the broadband and/or the broadband connection itself. Currently, if a car is caught speeding, say by a camera, the registered keeper of the car has to prove that they weren't driving at the time, and provide details of who was, to avoid prosecution, ie the registered keeper is assumed guilty until proven otherwise. This puts the responsibility for the vehicle firmly on the shoulders of the registered keeper. To take this across to Internet use would mean that the owner of an internet connection would have to prove that they didn't perpetrate the infringement, leading to the situation that we have at the moment, thanks to the DEA. What's actually interesting to note is that no-one ever complains that this is the case with cars...

By dk2k1uk on 11 Feb 2011

hm, maybe

By dk2k1uk on 11 Feb 2011

Are we still calling it the information superhighway?

Have you ever noticed how the only people who use the "information superhighway" metaphor these days use it to suggest something that is absolutely not in your best interests?

You're talking about requiring people to get a licence to write emails here. That's ridiculous.

By steviesteveo on 23 Mar 2011

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