Legal status of customers
When you order as a new customer you can select in what capacity you receive communication services from us. There are three main types of customer, with subscriber being the default. Your choice does not affect the cost of the service in any way, but we need to know in order for us to comply with certain legislation.
If you are a communications provider, or an internet service provider, or a large company (more than 10 staff) we note this on your regular invoices. If you see this note and it is wrong, please tell us as it can affect your contract terms.
A subscriber is someone that has an agreement with us to use an Internet access service and is not receiving that service as a communications provider. This is the default.
The definition of communications provider is in in the Communications Act and is quite complex.
Firstly provider is a bit misleading as section 32(4) redefines this to include establishing, maintaining and operating a communications network.
Secondly network is a bit misleading as section 32(6) says that even a single transmitter counts as a communications network.
The Act seems to have been drafted to catch almost anyone as the definition seems to mean anyone that operates a small home network or even a DSL router would appear to be a Communications Provider under the Act. However, we are not trying to offer any legal advice here.
What we are asking here is whether you believe you receive service as a communications provider. It is not entirely clear what the difference is between that, and being a communications provider and receiving service. However, as it matters how you receive the service, not how we provide it, then we can only tell by asking you. Separately it matters if you are a communications provider whether your receive the service as that or not. We're not making this up, honest.
Internet service provider
An Internet service provider is anyone that is a is providing Internet access services to subscribers, and allocated IP addresses to do so. These have to be people that have an agreement with you to provide an Internet access service (so public wifi does not count if you have no agreements) and they must themselves not be receiving the service as a communications provider (else they are not subscribers). If you have anyone else using the service but they do not meet these criteria (an agreement, allocating IPs and them not being a communications provider) then you are just a communications provider yourself, and not an ISP.
Note that the definition of Internet access service is circular which makes this somewhat difficult. i.e. if it is not an Internet access service, then the people buying it are not subscribers, but if you have no subscribers then your service is not an Internet access service. Sorry, we don't make the law!
Importantly, if you buy Internet service from us, and charge your customer, then we have no commercial arrangement with your customer, so they are not our subscribers. However, if you do not allocate IP addresses to them (we do that) then you are not an Internet service provider either. You are, however, clearly buying from us as a communications provider in such cases. So neither you, nor your customers come under the definition of subscriber under the law. Don't take this as legal advice though.
Note that if you are an Internet service provider that providers services to the public then you become a public electronic communications network provider and have a number of additional obligations under the Communications Act.
What are the implications of the choice?
This is not formal legal advice. The choice you make affects the way we act in certain cases. We rely on you to make the choice, and you can change your selection any time. If you make the wrong choice and we get fined as a result, we expect you to cover our fine.
Also, the choice you make here does not change the facts - you are a communications provider under the Act if you meet the defined criteria. The choice here is if you are buying from us as a communications provider.
If you are a subscriber then the Communications Act (as modified by the Digital Economy Act) means we will have to pass on copyright infringement reports we get about your IP addresses; count those reports; include you (anonymously) in lists we have to send; and maybe take measures to block or restrict your Internet service. However, if you receive service as a communications provider you are not a subscriber and we can ignore notices relating to your IP addresses as invalid. Indeed, we may be obliged not to send noticed to you in such cases as that would be harrassment as well as possibly fraudulantly charging the copyright owner for handling notices that are not in fact valid notices.
If you are an Internet service provider you may have to take some actions if you get copyright infringement notices, passing them on to your subscribers. However, if we get such notices about your IP addresses we do not have to pass them on to you, or tell the copyright owner who you are, or any contact details for you (unless they have a court order). In fact we must protect your details under the Data Protection Act.
The other implication of being a communications provider or being a business with more than 10 people working from you, is that our contract with you does not have an option to use an arbitrator to resolve any dispute between us. This applies if you tell us you are a communications provider, or are buying from us as a communications provider.
Bear in mind this is not legal advice, just our opinion
- If I am a communications provider do I have any extra legal obligations?
- We believe not - being a communications provider but not being an Internet service provider almost certainly means you have no extra legal obligations. You would need to check the Communications Act to be sure.
- Can I just say I am receiving service as a communications provider to bypass the annoying copyright notices?
- You need to tell us the truth. You almost certainly are a communications provider as defined by the Act, but are you receiving service as a communications provider? If you tell us you are, then we will ignore any notices about your IP and not harrass you, but if that turns out not to be true we will expect you to cover any fines we get. You don't need to lie to us to avoid problems with copyright notices, just get a migration code to another ISP before they reach the threshold for notification. After all, we cannot pass details of notices you have received on to another ISP under the Data Protection Act, and we have to delete those details when you go.
- Won't I have to keep records for a year under the Data Retention Directive?
- If you are a public electronic communications network provider then you could have to keep some records under the DRD. This applies whether or not you tell us that you are an Internet service provider. However
- The secretary of state has to ask you to start keeping records
- The secretary of state has to reimburse you for the costs of doing so
- The records you keep are data that you already process or generate - you don't have to start taking peoples names, etc. It is probably DHCP IP address and date/time only.
- If you don't keep records after being asked, they won't know until they have reason to ask you for the records. Then, the enforcement is that they get a court order to require you to start keeping records. Only then would there be consequences (fines, etc.) for failing to comply.
- Will I have to handle copyright infringement reports from copyright owners and pass on to my subscribers?
- If you are an Internet service provider, then yes, the new law applies to you. Again, this applies regardless of what you tell us you are. If you are an Internet service provider then tell us so that we don't bother processing reports sent to us. We also can't tell copyright holders who you are as that is personal information protected by the Data Protection Act. They will have to figure it our for themselves.
- Is the Digital Economy Act in force yet then?
- The Act is, but only applies to very large ISPs. The limits could change at any time and affect us, and you, so this is why we ask now, in what capacity you receive services from us.
- Does this mean I can copy material safely?
- We are not trying to encourage anyone to commit civil wrongs or criminal actions. Bear in mind that none of this new legislation actually changes who is liable for such offences - it is the person committing them and not a separate person that provides their Internet access (as long as you are not actively encouraging them, but this is not legal advice).