The Digital Economy Act and How Will it Affect You

If you haven’t heard of the Digital Economy Act, it’s not really surprising. The legislation, which has proved controversial and become the subject of judicial review in 2011, was rushed through Parliament back in April 2010 despite opposition from many MPs who believed it was far too draconian.

The Digital Economy Act was designed and passed by the previous government, and is intended to stop piracy by tracking down illegal file sharers so that they can be sued by copyright owners. It’s controversial mainly because it introduces a new system that takes the responsibility for tracking down persistent illegal file sharers and down loaders and can potentially force Internet service Providers (ISPs) to block infringers' Internet connections.

How Does the Digital Economy Act work?

The Act was intended to bring into force a set of new legal processes, which were to come into force as soon as a new Ofcom regulatory code was approved by Parliament. The process starts with copyright owners (musicians and publishers for example) putting together lists of the IP (Internet Protocol) addresses that they believe have been infringing their copyright – illegally sharing and/ or downloading files.

There are many sites (often called peer-to-peer sites) where files can be downloaded illegally, and all a copyright owner would have to do in order to find out the information would be to find material they own on one of these sites, and noting the other IP addresses that connect to it. They send this list of addresses to the Internet service provider (ISP) with what’s called an ‘Infringement report’.

The ISP must then notify the user/subscriber that they have been added to the list. In some cases, the copyright holder can then ask for a court order that compels the ISP to give them an individual’s details, if they have reached a certain threshold which will be set out in the Ofcom code. Basically, it’s a list of persistent offenders who are seen to have shared and/or downloaded a large number of files without paying for them and been caught out for it. This will enable the copyright holders to take legal action against certain people for infringement of copyright.

Review of the Digital Economy Act

The government had already started to look at the detail of the Act since it was highlighted on Nick Clegg’s 'Your Freedom' website. Communication solutions provider Interoute agreed, and argued on behalf of ISPs that putting the responsibility onto them to take action against illegal file sharers is unreasonable, and would lead to too much extra work. They believe that all parties need to work together to come up with a workable and effective solution to the problem.

The company said that it believed asking ISPs to slow or even cut off people's internet access was unrealistic, and in Internet terms was the equivalent of closing down a web auction site like eBay just because one person sold fake items.

Legal Challenges against the Digital Economy Act

Communications providers BT and TalkTalk have challenged the Act as they are disputing whether it can actually be enforced according to EU legislation. One of the issues that they are most concerned about is that of ‘web blocking’ - effectively this gives Ofcom the legal powers to block any website that has made illegal file sharing possible. It’s claimed that this part of the Act could breach civil liberties as well as basic consumer rights, and it’s not considered to be a workable idea.

Consumer Rights group Which? also questioned the ways in which the new law would be implemented, and suggested that an independent adjudicator was used to make sure that people weren’t wrongly accused of illegal file sharing, without sufficient evidence.

ORG, the Open Rights Group, has asked to be consulted along with other consumer groups to come up with what it’s called a ‘Plan B’ for the file-sharing issue.

If the Judicial Review, which began in March 2011 at the High Court, rules in favour of BT and TalkTalk, the Digital Economy Act would become unenforceable, and the government will have to think again about how to tackle illegal file sharing.

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