Stuart Freen is a JD candidate at Osgoode Hall Law School.
The United Kingdom’s coalition government has asked telecommunications regulator Ofcom to review certain parts of the Digital Economy Act 2010 which would force ISPs to block access to websites that enable copyright infringement.
Culture minister Jeremy Hunt announced that while he has “no problem” with blocking copyright-infringing websites in principle, the government is concerned that the legislation as passed will not be practically workable. The announcement represents a victory for ISPs and users’ rights advocates, who have complained that the Act will force ISPs and their users to shoulder the costs associated with enforcing infringement claims.
The embattled and controversial Digital Economy Act 2010 was passed in April 2010 after being pushed through without much debate in the wash up. Notably, the Act creates a “graduated response” system whereby users can have their internet service shut off if they are caught repeatedly downloading copyrighted material (ss. 3-16). The Act also gives courts the power to issue “Blocking Injunctions” which require ISPs to block access to a location on the internet that “is being or is likely to be used for or in connection with an activity that infringes copyright.” While both aspects have been heavily criticized in the British media, it is the latter power which has been sent to Ofcom for review.
Among the terms of reference for Ofcom to assess are:
- Is it possible for access to the site to be blocked by internet service providers?
- How robust would such a block be?
- Can specific parts of the site be blocked?
- What would it cost ISPs to implement such blocks?
As with the Canadian Bill C-32, the Digital Economy Act 2010 has become a hot political issue. The Bill was passed in the waning hours of the Labour government with the aid of the Conservative party. However, the current coalition government has appeared less eager to enforce the legislation, which the Liberal Democrats originally opposed.
The review may have been spurred by the results of the Your Freedom initiative held last summer. The populist project invited members of the public to comment on which laws were unnecessary and deserved to be abolished. The Digital Economy Act 2010 was reportedly one of the most commented-on and least-liked pieces of legislation. Deputy Prime Minister Nick Clegg commented in the government press release that "although reform of the Digital Economy Act did not form part of the coalition agreement, we have listened to the views expressed. The government will look at whether we have the right tools for the job in addressing the problem of online copyright infringement.”
A recent UK court decision foreshadowed the difficulties that may plague the enforcement of the Act. Judge Colin Birss of the Patent County Court noted that enforcement schemes which rely on tracking users’ IP addresses will be fraught with legal difficulty. IP addresses attach to internet accounts rather than individual users, and consequently whenever a single account has multiple users (such as a family connection or an unsecured wi-fi hotspot) it will be difficult to meet the evidentiary burden required to prove copyright infringement. The Digital Economy Act 2010’s graduated response scheme relies heavily on tracking IP addresses and shutting off internet access at the account level.