Internet service providers cannot police what their customers do while accessing the internet, nor take any action over what they are doing unless warranted by a court order. Then again, how can ISPs tell whether an internet download is legal or not?

This is the status quo, according to Aldo Calleja, chairman of the Electronic Communications Business Section of the Malta Chamber of Commerce, Enterprise and Industry, in reaction to calls to curb illegal internet downloads that are hurting the sale of genuine music, videos and video games products in Malta.

On August 15, The Times reported how Grace Borg, owner of an audio and visual entertainment store, had criticised the inaction against piracy and the illegal downloads of entertainment content over the internet which is threatening the existence of outlets like hers.

She argued that "internet service providers had to play a part to prevent abuse ... there were a number of things that could be done to block these sites, such as protocol and port blocking, bandwidth capping and shaping among other things."

"ISPs have no legal remit to perform any unilateral actions against any specific use of the internet, be it file downloads or other applications, unless such action forms part of the internet service conditions provided by the ISP to the customer," explained Mr Calleja. "For example, if an ISP wants to provide an internet service which filters adult content for the protection of children, then the ISP can only do so for the customers that accept such a service condition.

"Other than the above, for an ISP to take any form of action, such as blocking any specific download, this must be done by means of a court order or a specific law. Then again, even if such a law or order were to exist, a major difficulty would remain: How does an ISP identify a legal download from an illegal download?

"This difficulty makes such laws virtually impossible to conceive and enforce. This means that the recommendations [by Ms Borg] in the article are simply impossible or impractical."

A spokesman from the Malta Communication Authority confirmed with i-Tech that ISPs have no special legal obligations in terms of supervising what their customers are doing with their internet access.

Under the laws administered by the MCA there are no specific obligations, other than the provisions under the E-Commerce Act Cap 426, notably Article 22. In substance, information society service providers have an obligation to promptly inform the competent public authorities of any alleged illegal activity undertaken by recipients of their services of which they may be aware of.

They shall also provide the authorities on request, with any information which will enable the authorities to identify the recipients of their service.

"However, the law clearly states that this should not be interpreted as imposing an obligation on such service providers to monitor the information which they transmit or store or to actively seek facts or circumstances indicating illegal activity in connection with hosting or caching services that they provide," insisted the authority's spokesman.

Both the ISPs and the MCA are aware that the situation needs to be addressed, but the issue is complex and there is no speedy or handy solution in sight.

"This is a matter of concern in many jurisdictions around the world and not just in Malta. A practical solution has yet to be found. The MCA's role will be to enforce, or assist the competent authority to enforce, any legal provisions that may be established with respect to ISPs in this regard," added the MCA's spokesman.

The revision of the EU electronic communications framework which was expected to be concluded last June stalled when the European Parliament proposed the introduction of a provision implying that, in principle, no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities.

The European Parliament was specifically against any powers being given to authorities in member states to regulate and/or control the usage of the internet in order to enforce the compliance to the copyright law, in particular.

The proposed European Parliament provision was a reaction to the proposed French legislation called "the HADOPI law" in this sense. A final agreement on this point between the European Parliament and the European Council has yet to be reached; one of the Council's main arguments in this respect is that matters of copyright should not be addressed under the Electronic Communications Framework.

A few weeks ago i-Tech reported how software piracy in Malta stands at around 46 per cent, and ranks fifth among western European countries, according to the latest survey by the Business Software Alliance.

The chairman of the Chamber of Commerce's section representing Maltese ISPs is aware that piracy is undoubtedly having a negative impact on the local shops selling originals. However, technology itself and the new ways of providing users with entertainment is also challenging the very business model of traditional brick-and-mortar shops.

"Such shop owners should also be aware that the technologies being developed to restrict piracy of music and video, by means of digital watermarks, do not protect their interests either. Such technologies are ultimately aimed at the direct distribution of the music or video to the consumer by means of the internet and bypassing almost all parties in the middle.

"It is this clear that while the pirates are making business difficult for these shops today, the music and video content owners are also planning not to need these shops in the future, at least not as much as they do today. As always, in business one has to constantly consider which battles to fight. This is certainly not looking good for the retail shops selling music and DVDs," warned Mr Calleja.

In recent years both the download allowance and download speed made available by Maltese ISPs have increased substantially, thanks to continuous investment in their high-speed internet networks.

Maltese internet users today enjoy tens of gigabytes of data download capacity per month, equivalent to the size of tens of movie DVD or hundreds of music CDs and video games. As broadband internet access per se is based on an "always on" concept, it's easy to understand why some users are tempted to search and find illegal copies of music, movies and video games and download them in a matter of a few hours, if not minutes, at no cost except for the monthly internet access fee.