The Digital Economy Bill includes a new Code to limit Internet access. The government may bypass consultation process to bring it into force.
The UK Digital Economy Bill, currently going through the House of Lords, provides for a new Code which will implement the government's plans for dealing with peer-to-peer filesharing and any form of copyright infringement via the Internet. The Code is to be drawn up behind the scenes, by Ofcom, without scrutiny of Parliament.
The new code is outlined in
clauses 12 and 13 of the Bill: Code by Ofcom about obligations to limit Internet access. This code will set out the proposed implementation of ‘technical measures' - this will be the third strike of the three strikes system . Technical measures are the means of punishing Internet users who are alleged to have downloaded copyright infringing material. They include automated suspension of Internet access, and throttling of bandwidth.
The Internet limitations Code will follow the Initial Obligations Code (see previous article on iptegrity.com. ) which sets out the system of warnings to users concerning alleged copyright infringements.
Although the Bill sets out a process for bringing in Internet limitations over time - and even for making these measures optional pending the outcome of a market report by Ofcom - the word from Westminster is that the this process will not be followed. Instead, the Secretary of State may take advantage of a power in Clauses 10 and 11 of the Bill, which would effectively permit him to override this process and bring the measures in more quickly.
It is understood that Clause 10 of the Bill is intended to enable Ofcom to move ahead with the technical measures as soon as the Initial Obligations code has been introduced. In other words, the government is planning to jump the gun, and go right ahead with the Internet-limiting measures without waiting for Ofcom to do the appropriate consultation.
Moreover, the government is using the Codes in order to avoid any scrutiny of the 3-strikes measures by Parliament. This has been questioned, although rather weakly, in the House of Lords debates.
The point is that a code of practice set up by Ofcom, does not have to go before Parliament in the same way that a new law has to. If the government set out the 3-strikes measures properly in the law, then Parliament would have the opportunitty to decide what should happen, and the public would have the opportunity to voice their opinion. If a sharp-suited Ofcom employee draws it up, only his boss will oversee it.
Under this process, the public will get no say in the Code. Given the implications of the code for freedom of expression and due process under both UK and EU law, this would seem to be inappropriate.
NB: Interestingly, the language of 'limitations' mirrors the language of the Universal Services directive in the EU Telecoms Package.
Clause 12 “
124I Code by OFCOM about obligations to limit internet access
(1) For any period during which there are one or more technical obligations in force under section 124H, OFCOM must by order make a technical obligations code for the purpose of regulating those obligations.
“124H Obligations to limit internet access 20 (1) The Secretary of State may at any time by order impose a technical obligation on internet service providers if the Secretary of State considers it appropriate in view of— (a) an assessment carried out or steps taken by OFCOM under section 124G; or 25 (b) any other consideration.
Obligations to limit internet access: assessment and preparation After section 124F of the Communications Act 2003 insert— “124G Obligations to limit internet access: assessment and preparation (1) The Secretary of State may direct OFCOM to— 35 (a) assess whether one or more technical obligations should be imposed on internet service providers; (b) take steps to prepare for the obligations; (c) provide a report on the assessment or steps to the Secretary of State. 40
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This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) UK to bring in Code to limit Internet access http://www.iptegrity.com 27 January 2010