Wait…there’s more! The Digital Economy Act debate rumbles on.

In my most recent post I contrasted the approaches of the UK and Finland towards access to broadband. Whilst reading a little further around the topic, I came across some interesting discussion of the controversy surrounding the Digital Economy Act.

The circumstances in which the Act was passed through Parliament have drawn a lot of criticism, as it was rushed through just before Parliament was dissolved in the run up to the general election this year (the Act was passed on 8th April, and the general election was held on the 6th May). At the time many MPs, including current deputy prime minister Nick Clegg, protested that the complex bill required more debate and scrutiny.

As I mentioned previously, some features of the Digital Economy Act will see persistent illegal file-sharers disconnected from the internet, and the Act also gives copyright owners the right to block access to sites hosting illegal content. Two major ISPs, BT and TalkTalk, are seeking judicial review of the Act to clarify whether this compulsion is a legal one or not. They propose that this Act is in conflict with the EC’s e-commerce directive, which states that ISPs are “mere conduits” of content and should not be held responsible for illegal traffic on their networks unless they are specifically aware of it.

A further point of irritation for ISPs under the new Act is the code of practice which the regulator Ofcom is currently drawing up, which sets out how the legislation will operate.  This code of practice currently only applies to larger ISPs (those with 400,000 or more subscribers). ISPs such as BT and TalkTalk are already anticipating "huge swathes" of their customer base switching to smaller ISPs who fall below this threshold, to avoid the legislation and its potential repercussions for them as internet users.

In spite of the criticism facing this legislation, the Coalition government has so far stood firm, and has no plans to change the Act.  However, one has to question the extent to which access to the internet, something regarded as a human right elsewhere in the world, could be so easily curbed under an Act that appears to have been hastily passed through Parliament despite widespread disapproval - another example of the tension between old school copyright licensing models and modern (albeit infringing) distribution practices.

Comments

[Martin Budden]

My response to Ofcom's DEA consultation is here

I am not a lawyer, but in my response I make some quasi-legal points related to the level of evidence required and also whether Ofcom is actually discharging its obligations under the DEA. Any comments to those points would be gratefully received.