UK: The Digital Economy Act 2010

Last Updated: 28 October 2010
Article by Paul Herbert

The ink is barely dry on the pages of The Digital Economy Act 2010 ("DEA") and yet its legality is already being questioned.  Two of the largest ISPs, BT and Talk Talk have announced their intention to seek a Judicial Review of the Act on the grounds that it was subject to insufficient parliamentary scrutiny and is not ECHR compliant.  Hardly an auspicious start...

The Act was intended to implement the Digital Britain Report which was published with great fanfare in June 2009.  However by the time the first draft of the Bill was published in Nov 09 it was already apparent that its passage was liable to be affected by the looming General Election.  The Act was eventually passed in April 2010 but several of its more radical provisions were sacrificed in the "wash-up" procedure, the horse trading between political parties which occurs when legislation is hurried through before the dissolution of Parliament.

Nevertheless the Act as passed does introduce some important new provisions designed to protect against online piracy and file sharing. These take the form of amendments to existing legislation namely the Communications Act 2003 and the Copyright Designs and Patents Act 1988, viz:

  1. s3 requires Internet Service Providers (ISPs) to notify their customers (referred to as subscribers) of instances of suspected copyright infringement which are drawn to the ISP's attention by the copyright owners (COs) of the material in question - most likely audio-visual material and music files. The owners do this by means of copyright infringement reports (CIRs) that list internet protocol (IP) addresses which they believe are being used for infringement;
  2. Under s4, the ISPs are also required to provide the COs with copyright infringement lists detailing which of the CIRs provided by the CO relate to a particular subscriber, but importantly without identifying the subscriber.  This will only arise if the subscriber(s) have exceeded a specified number of suspected infringements.  Although the lists do not identify the subscriber, the CO could then apply to the court for a disclosure order which could compel the ISP to disclose their names and addresses.  This is an example of how protective the DEA is of the rights of subscribers; that has clearly been a paramount consideration throughout.
  3. Where infringements have been occurring in relation to any particular ISP, s9 allows the Sec of State to direct Ofcom (the relevant regulatory body for this area) to assess whether technical obligations should be imposed on the ISP(s) requiring the ISP to take measures against some or all of its subscribers. Those measures could include limiting the speed or capacity of access; preventing access to particular sites; or suspension of service.  Any such assessment is likely to involve a degree of consultation with some or all of the affected parties.  Then under s10, the Sec of State can in the light of Ofcom's assessment make an order imposing such technical obligations on the ISP. Any such order has to be passed by both Houses of Parliament and allow at least 60 days for its passage.  Not exactly a speedy process, in fact it all seems very cumbersome.
  4. An alternative enforcement process lies in s17 which enables the Secretary of State to introduce regulations for the granting by the courts of blocking injunctions ie orders blocking access to a site that is being used for infringement purposes.  As with the technical measures orders, these would be have to be passed by both Houses of Parliament and s17 lays down a number of safeguards that must also be observed in the preparation of such orders.  Again this is not a straightforward process.
  5. Ancillary to these provisions are various sections requiring the drawing up of two Codes of Practice: the first in relation to the process for notifying subscribers of suspected infringements, providing information concerning these to COs, relevant thresholds for infringement and so on. Secondly, Ofcom is required to prepare a Code relating to the technical obligations which might be imposed on ISPs. 

In May Ofcom published its draft "Initial Obligations Code" and that consultation closed at the end of July.  Amongst its proposals is the limiting of the new piracy protection provisions to ISPs with more than 400,000 subscribers.  The final code is awaited with great interest.

  1. Ss 19-21 entitle the Secretary of State to intervene in the operation of Domain Name Registries where there has been abuse or misuse of domain names which the registry has failed to deal with adequately.  This only applies in relation to top and second level registries which are UK related.  Ultimately, if the registry does not deal with the issue in question, the Sec of State can appoint a manager to operate the registry in order to ensure that the appropriate steps are taken.  This is pretty radical stuff and is akin to the appointment of a receiver over a company.
  2. S42 amends the CDPA so as to increase the penalties for copyright infringement from £5,000 to £50,000. This applies to those copyright offences which are actioned as criminal offences, a fairly rare occurrence in practice.  The main remedy tends to be by way of a civil action for damages, account of profits and injunction.  However it is indicative of the sentiment of the Act to increase the protection to COs.
  3. There are various miscellaneous provisions in the DEA: the introduction of the PEGI classification system for classifying video games (thereby harmonising the practice in the UK with the rest of Europe); extension of the public lending right to audio and e-books; modification of ITV, Channel 4 and commercial radio broadcast licences; and provision for auction of spectrum for mobile broadband services.   

With talk of Judicial Review and murmurings of discontent amongst members of the Coalition Government some commentators have suggested that Act may not survive in its present form but this will of course depend on the availability of parliamentary time to redress issues which may be regarded of relatively low priority at the present time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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