Notes on DEAct and Behavioural advertising: 34,000 people could have their details handed over to the media industry

There’s a lot being written about the Digital Economy Act and Ofcom’s latest draft proposal – I’m not sure I have much to add to the debate except on the volume of people affected and how that might work out. Firstly, it appears based on figures for the userbase I have access to that in 2009, around 1 in 500 DSL lines would have ended up on the “Copyright Infringers List”. It’s mostly a home user issue, rather than businesss, so if we restrict it to households the figure appears to be closer to 1 in 300. That’s a surprisingly large number and means that, based on over 17 million broadband lines in the UK, thirty four thousand people could have their details handed over to the media industry under this proposal, even if the companies don’t increase their rate of reporting to ISPs. (Most ISPs at the moment either ignore the reports or just pass them on to the end user without taking any further action) I’m not sure if this figure just demonstrates the scale of the problem in terms of copyright infringment or in terms of the way the act is written but whatever happens, bulk justice is not justice. I’ve had the misfortune of having to defend something very trivial in comparison, a parking ticket, that due to apparent negligence by Islington Parking Services had ended up going to county court via “Bulk Processing” even though it had been appealed, several times by recorded delivery. All that’s required for such “bulk” justice is the applicant to say “We issued this person with X” and the court issues an order against someone, without the court ever sending anything to the defendant.

Are we to adopt a similar system for copyright bulk justice? 35,000 people suddenly finding they’re receiving court orders against them without ever having necessarily had anything before hand because someone messed up? Remember, these are the same people who accused a printer of online copyright infringement so we can’t trust they’re going to exercise due diligence.

Related to that last item about the printer, there’s also one particularly worrying statement in the Ofcom code“This list is based on the information currently produced by agents working on behalf of Copyright Owners. We believe that this matches the standard of evidence required by the courts in relation to civil proceedings by Copyright Owners for copyright infringement.” (Page 18) Either Ofcom have this wrong or the courts really need to insist on better “evidence” because we already know their current methods are far from robust, even if we assume that the bill payer is the infringer when they do get it right, when in fact it’s pretty unlikely.

But while that is going on there’s something else in the background that worries me, specifically related to behavoural advertising. The Office of Fair Trading have been looking into this and in a recent report (Warning: Large PDF) have suggested labeling adverts created based on users past behaviour. This is despite the fact that parlimentary committees have said it should only be used when a user explicitly consents. To my mind, labelling an advert as behaviorally-based is worse than not labelling it and this isn’t just Google-style adwords, showing adverts targeted to the site you’re on. These adverts follow you round after you’re left the site, even if you clear the browser history. Consider that many of the most vulnerable members of society rely on the internet to get help and information and aren’t likely to have the time or experience to research the issue. What happens if someone is living in an oppressive household – lets take a non-controversial example of someone who is the victim of domestic violence – and after having used the internet to research adverts start popping up for divorce lawyers. At the moment there is a degree of plausable deniability, after all I keep getting Google Adverts from the “Ad Council” even though I do not live in the US and have no interest in the public-service issues they’re pushing. Put a nice little icon in the corner of the adverts that lets someone know why that advert popped up and that it’s based on where you’ve just been and you’re potentially creating a lot of trouble for vulnerable people.

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