Ofcom's draft code detailing how the Digital Economy Act will be enforced is illegal as it fails to outline the standards of evidence firms must use when accusing citizens of copyright infringement, according to the Open Rights Group (ORG).
Jim Killock, executive director of the ORG, said that the Act requires Ofcom to force rights holders and ISPs to reveal the way in which information on alleged copyright infringers is gathered, and that Ofcom's draft proposal fails to do so.
"Under the draft proposals firms will just have to submit a Quality Assurance Process to Ofcom that details parts of the methods they use, but Ofcom won't then publish this report even though the Act says this information must be public," he explained.
"As such, there is no chance for the public, or indeed government, to see how information is being gathered and to scrutinise this evidence to see if it is trustworthy."
Killock believes that Ofcom has been forced to rush through the consultation process before the 30 July deadline, because parliament had forgotten that the code must be sent to the European Union for a three-month consultation process.
He added that a detailed reading of the draft document had uncovered other " glaring errors" in the code concerning the sending of letters to alleged infringers and the appeals process.
"We could end up with a situation whereby Ofcom could be the subject of a judicial review and taken to court because its code for implementing the Digital Economy Act does not adhere to the law as set out in the Digital Economy Act," Killock said.
However, Ofcom believes that the draft code meets the requirements of the Act, and said that the consultation is open for another week and that it will study all feedback.
"We will consider all responses until 30 July, so if the ORG wishes to submit anything we will look at it and if it's a valid issue we would take that into account," said an Ofcom spokesperson.
The Digital Economy Act remains highly contentious. Internet service providers TalkTalk and BT have challenged the legislation in the courts, and the ISP Association has called for a proportionate implementation of the Act.
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