A guide to the Digital Economy Act 2010
On 8 April 2010 the Digital Economy Act 2010 (the "Act") received Royal Assent. The Act covers a wide range of issues currently facing the communications and creative industries that were raised initially in the Digital Britain Report of June 2009. Some of the key provisions of the Act are summarised below.
Copyright infringement reports
Perhaps the most controversial and high profile part of the Act relates to ISPs and their obligations in relation to copyright material transmitted by end users. Under the Act, Ofcom may put in place an 'Initial Obligations Code' under which copyright owners will be able to file "copyright infringement reports" to Internet Service Providers (ISPs) identifying the IP address of subscribers that the copyright owners believe to be infringing their rights. An obvious example where this might occur is in relation to music or other media file sharing. In such instances there will be a number of obligations on ISPs to deal with the infringement.
The Act also includes a power for the Secretary of State to order the introduction of a 'Technical Obligations Code' once the Initial Obligations Code has been in force for a period of 12 months. This code could oblige ISPs to put in place technical measures against those subscribers who have been the subject of a prescribed number of copyright infringement reports. Whilst it is difficult to conceive how such measures could work in practice, the Act provides that failure on the part of ISPs to meet their obligations could result in fines of up to £250,000. The current definition under the Act of an ISP is extremely wide and could conceivably catch retail and other outlets that provide access to the internet.
Blocking injunctions
The Act allows the Secretary of State to make regulations that would give the courts power to grant injunctions against ISPs, requiring them to block internet access by those attempting to access the internet from a location which the court considers has been used, is being used, or is likely to be used, for an activity that infringes copyright. Again, it is difficult to see how these injunctions might be applied or enforced in practice, at least without contravening the rights of others (such as in shared households).
Domain names
The Act gives powers to the Secretary of State in relation to internet domain registries. This includes the power to intervene in a number of circumstances including when there has been a misuse of a domain name that is serious enough to have adversely affected consumers or members of the public in the United Kingdom. The Secretary of State is required to consult on what constitutes a misuse.
Providing information to Ofcom
There are new requirements on Ofcom to report on communications infrastructure. As a result, Ofcom's existing powers to gather information from communications providers has been extended.
As the new coalition Government takes office it is unclear whether the Act will be subject to any major revision. Prior to the General Election, Mr Cameron had said that, whilst the Bill was rushed through parliament too quickly, the Act contains important provisions for an important industry in Britain, whereas Mr Clegg described the passing of the Bill during the 'wash-up' period as a 'stitch up', stating that the Act needs to be replaced.
Before any Initial Obligations Code is put in place, Ofcom will need to engage in a public consultation. Taylor Wessing will be following the progress of the Act and any connected consultations carefully. Should you have any questions with regard to the Act in its current form, or require guidance on participating in the consultation process, please do not hesitate to contact us.
Lawyers Graham Hann
