You Need To Ask Yourself: “Am I an ISP?”
If you provide free WiFi as part of your business – for instance, if you run a café or a hotel, then the answer to “am I an ISP?” is possibly – but surprisingly – “yes”.
An ISP is an Internet Service Provider – somebody who provides Internet services. Whilst you might well associate ISPs with the big players who are always trying to get you to switch your broadband to them, the Digital Economy Act defines it a little differently.
You are an ISP if you provide access to the Internet “for commercial gain”. Note that phrase – “commercial gain”. It specifically does not say “in exchange for money” – which implies that the “gain” can simply be increased custom for your core business activities.
Whilst the exact meaning of “commercial gain” is not defined in the Act, it is certainly arguable that providing free Wifi to entice customers into your business is well within the scope of “for commercial gain”.
In other words, anybody who provides Internet service (aka “internet access”) – which includes free WiFi – is arguably an ISP.
What Is The Digital Economy Act?
The Digital Economy Act is a massive shake up of the Law as it applies to the Internet, and you’ve probably read mentions of it in the newspapers – with the headlines talking about how ISPs are going to have to block adult content, and a whole lot of stuff about “age verification” and “guaranteed fast broadband” and “making the Internet safe for children”. On the face of it, there’s not a lot about the Digital Economy Act that you could say was a bad idea.
But when you realise that, come April, an awful lot of people will be breaking the Law without realising it – and you understand that there will be “financial penalties” for doing so – then you might be less thrilled about its provisions. Especially if it’s you who is going to be hit with the fines.
The Act talks about how only businesses with “large turnover” will be forced to comply but – again being deliberately vague – does not specify what the turnover threshold is for it to be considered “large”.
If You Just Run a Café, How Does The Digital Economy Act Affect You?
The Digital Economy Act affects you if you provide free WiFi to your customers. By doing so, you are providing “Internet services” and doing so “for commercial gain” – so you are now, in the eyes of those who hand out the spot fines, an “Internet Service Provider”. Once they’ve decided that you’re an ISP, they will check to make sure that you are complying with your new obligations – such as blocking adult content and preventing piracy.
You probably never gave much thought to it – you’re too busy steaming up the milk for the next latté – and you’ve never had to worry about it until now, but now you have to care about it – and now you have to care a great deal:
What do your customers actually do on the free Wifi you provide?
Most of your customers probably just do the usual stuff – Facebook, read the news, a bit of Google searching and catch up with emails. All whilst enjoying your delicious coffee and putting money in your till.
But what if one of your customers is using your free WiFi to upload torrents of pirated music or films? As an ISP, you are now liable. And you’ll be fined. Or if they are browsing – or even worse – uploading pornography? As an ISP, you are now liable. And you’ll be fined.
These fines are 5% of your turnover, or up to £250,000. Even if they were “only” a spot fine of a few hundred pounds, it’s still going to wipe out much of this week’s hard-won profit. If it didn’t put you out of business.
You need to understand this. As a provider of network services, even only free WiFi, you are responsible for what your customers do. And you are responsible for what they can access.
One way of mitigating the risks is to implement a content filtering solution to make sure that your WiFi can never be responsible for serving “inappropriate content”. These do not need to be expensive, although there are very few available “off-the-shelf” at a price-point acceptable to SMEs and they do take a bit of technical expertise to get right.
It will be some time before the terms “for commercial gain” and “large turnover” become settled Law which is unambiguous and clear. Until then, and given the steep financial penalties involved, it might well be worth considering whether or not the risk of doing nothing is worth it.