The controversial Digital Economy Act is now law after being approved by the House of Commons by a majority of 142 votes, the House of Lords and receiving Royal Assent. The Act was dealt with as part of the 'wash-up' procedure, which is where there is a lack of time before the general election and proposed legislation is not given the normal level of scrutiny. The complexity of the Act and the lack of time spent on it has lead to a strong level of opposition with over 20,000 voters writing to their MPs and over 60,000 messages on Twitter in the week prior to its third reading in the House of Commons. However, the next Parliament will be able to study the most contentious aspects of the Act before they are enacted and there will be an extended period of public consultation.
The Act has been introduced in an attempt to support and regulate the development of Britain's digital economy. The Act aims to support artists' copyright, tackle internet piracy, overhaul the broadcasting industry and start the process for radio switchover.
One of the main aspects of the Act is that it creates a new process for dealing with alleged online copyright infringement. When an alleged abuse of copyright occurs, copyright holders can notify Internet Service Providers ("ISPs") of the alleged incident. The ISP must then notify its subscriber of the alleged breach. The Internet Service Provider ("ISP") can be ordered, by Ofcom, to sanction the accused with speed blocks, bandwidth shaping, site blocking, account suspension or other limits. Copyright holders could potentially oblige an ISP to block access to an entire website rather than simply blocking access to or removing the infringing content. There is no provision for how and when an ISP can be required unblock a site. If an ISP fails to apply measures against accused subscribers it can be fined up to £250,000.
These changes have been widely criticised for imposing a disproportionate penalty against ISPs for copyright infringement as well as being unfairly biased in favour of copyright holders. The Act may lead to the end of public WiFi, innocent people having their internet connections cut off and may seriously impact upon the ability of sites such as YouTube, Wikileaks, or Google to show content posted by users. Internet users could find access to popular sites severely restricted.
Whether there will be any challenges regarding restriction of freedom of expression under human rights legislation remains to be seen.
Other changes provided for by the Act include: the widening of Ofcom's powers to cover "all media" rather than merely TV and radio; modification of the licensing regime to facilitate the switchover to digital radio; increase of the maximum penalty for a criminal conviction for copyright infringement to £50,000; power for the government to intervene when new domain names are registered; and the change of Chanel 4's remit to require them to make innovative content for minority groups in its online activities as well as television.
Some of the proposed changes in an earlier version of the Act have not been adopted. The government decided to withdraw the provision regarding the independently financed news consortiums ("IFNC"). However, if Labour forms the new government after the general election, this provision could be reviewed. The idea was that the IFNC would have made local news to replace regional bulletins on ITV1.
The controversial provision regarding "orphan works" has also been abandoned. This would have allowed work to be used without consent where the owners could not be found. This decision was welcomed by copyright owners and photographers who believed that the provision would allow a publisher to take use their work without permission just by claiming the owner could not be traced. However, the problem of "orphan works" has not gone away and will have to be readdressed in the next Parliament.
MacRoberts will continue to monitor the legislation and the implementation of the rules.
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