The Digital Economy Act: What next?
The fight for online rights in the UK is far from over, argues Peter Bradwell
21 Apr 11

Peter Bradwell: the fight for online rights in the UK is far from over

Justice Kenneth Parker yesterday handed down his ruling on the Judicial Review of the Digital Economy Act. On the face of it, the decision looks like bad news for those who see some important flaws in the Digital Economy Act. BT and TalkTalk had claimed that the Act was unlawful on five grounds including European privacy and e-commerce legislation. (Open Rights Group intervened in support of the arguments made by BT and TalkTalk). The Judge dismissed all grounds save for one aspect of the claim about the costs imposed on ISPs. A useful background to where the Judicial Review came from can be found here.

The ruling means that Justice Parker deemed the other provisions of the Digital Economy Act are consistent with EU law. This is undoubtably a blow if you were looking for an extended, possibly indefinite, delay to the Act. But it is not the end of the world for those of us who place privacy, freedom of expression and due process ahead of chasing fictional losses from the creative industries’ revenues.

First of all, the Act’s provisions will not take effect immediately. It is unlikely that the “letter writing” (which will see letters sent by ISPs to subscribers whose accounts appear to have been used to infringe copyright) will begin before next year. The judge upheld a narrow point on the legality of asking ISPs to pay for some of Ofcom’s costs. That will take time to resolve. Further, the “Initial Obligations Code”, which sets out in more detail how the relevant sections will work, has to be published and agreed by the EU.

It is also possible that BT and TalkTalk will appeal, which would mean more delays. (They have, after all, been left with a decision that it is legal for them to be asked to pay 25 per cent of the running costs of the Act’s measures.)

Second, this is not a judgement about whether or not the Digital Economy Act is a good piece of legislation. It is emphatically not a ruling on whether the Act represents a good policy judgement. The ruling is an assessment of the Act’s consistency with EU rules on how governments are allowed to legislate.

We’re concerned about this law not because of a simple objection to trying to do something about file-sharing. The concern is with the likely consequences of this kind of enforcement. And on this point, the ruling contributes little to the fundamental policy debates in question.

The Digital Economy Act remains a threat to the basic rights of users of the Internet. It will likely have a chilling effect on the provision of public wi-fi because it sets up the possible liability for, for example, cafes, schools or hotels. The method of gathering evidence of infringement and linking it to subscribers means that those identified may have done nothing wrong.

There are inevitable threats to people’s privacy as large lists of alleged infringers are held by ISPs and ultimately the rights holders too. There is also the looming threat that in the future, subscribers may after a certain number of complaints face technical measures — which is the Act’s special phrase for “making your Internet go much slower or be temporarily turned off”.

And this is all for no proven gain. The evidence used to justify the Act, concerning the impact of file-sharing on revenues and the likely benefits of these measures, is at the very least highly contested. The judge made no rule on the veracity of such figures, taking the position that it is not for him to decide on the policy assessments of elected decision makers.

So this is not a disaster for those of us campaigning against this kind of flawed policy, nor is it any kind of official rubber stamp of the quality of the decisions involved. The policy debate remains very much alive, and at Open Rights Group we’ll continue to work against damaging laws — such as the recently proposed self-regulatory website blocking scheme —  that threaten to unnecessarily pose a threat to people’s privacy and stifle their use of the Internet. Decisions like this only make such work more vital.

Peter Bradwell is a campaigner with Open Rights Group