UK Culture Secretary Jeremy Hunt has ordered the telecoms regulator, Ofcom, to review of the web blocking clauses in the Digital Economy Act. These clauses - - 17 and 18 - rely on secondary legislation to come into effect, and would give British courts the power to order the blocking of websites on application by rights-holders.
Mr Hunt is claiming to be conducting the review in response to citizen opposition expressed on a government webiste - entitled Your Freedom - which sought to understand laws which people wanted repealed. On that basis, he has enlisted the support of the Deputy Prime Minister, Nick Clegg.
However, the tone of the review announced by Mr Hunt yesterday, is quite the opposite. The aim of the review is not to understand the democraticissues of blocking, and therefore why it might not be appropriate. Instead Mr Hunt wants to know if blocking is workable and how widely and deeply he can block.
Ofcom has been ordered to conduct the review. Given that the intent is evidently to support a law which protects the interests of another industry, this order seems at odds with Ofcom's duty to protect the interests of UK citizens.
It is clear from the way Jeremy Hunt speaks that his intention is to impose blocking as a punishment for copyright infringement. He said in a press statement.
"I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content. But it is not clear whether the site blocking provisions in the Act could work in practice so I have asked Ofcom to address this question."
In my opinion, his statement is problematic. The blocking of a website in this instance would be a punishment. Now if a Minister said in the same fashion ‘ I have no problem with blocking access to bookshops or cinemas which are used exclusively for facilitating illegal content ...' I feel the reaction would be different. In a democratic country, we don't do things that way.
According to the Mr Hunt's statement, the review will not look at fundamental rights issues. The reason given is that they are subject to the judicial review. In my opinion, this shows a lack of understanding on the part of his department (Culture, Media and Sport or DCMS).
The judicial review does cover the web blocking clauses, however, there are fundamental rights issues which relate to these two clauses, and which a responsible regulator should investigate.
What is very concerning is how Jeremy Hunt's review is extending the remit of the DE Act. Looking at the terms of reference - which DCMS cites as a mere ‘editors note' and does not address in the main statement - Ofcom is being asked about the creation of blacklists for ISPs to block. And the costs for ISPs to do so.
DCMS has asked Ofcom :
"How effective are sections 17 and 18 of the Act in providing for an appropriate method of generating lists of sites to be blocked?"
"If possible, identify either a potential range of costs for ISP blocking solutions or the main drivers of those costs? "
Now Clauses 17 and 18 are not about the creation of blacklists. They are about granting courts the ability to order blocking injunctions on an individual basis. There is surely no expectation of such a large number of injunctions that the ISPs need to create common blacklists? Or are the rights-holders gathering their ammunition to fill the courts with applications as soon as this revision gets onto the Statute?
This review is totally out of context with the legislation. It is surprising that Ofcom has not pointed this out.
Has DCMS just got it plain wrong? Or is Mr Hunt trying to extend the Digital Economy Act by the backdoor?
The full terms of reference for the the Ofcom review of Clauses 17 and 18 of the Digital Economy Act, as ordered by Jeremy Hunt (DCMS) are:
Is it possible for access to the site to be blocked by internet service providers?
How robust would such a block be - in other words would it have the intended effect, and how easy would it be to circumvent for most site operators?
What measures might be adopted by internet service providers to prevent such circumvention?
How granular can blocking be - i.e. can specific parts of the site be blocked, how precise can this be, and how effective?
How effective are sections 17 and 18 of the Act in providing for an appropriate method of generating lists of sites to be blocked?
If possible, identify either a potential range of costs for ISP blocking solutions or the main drivers of those costs?
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 (2011) De Act: is Jeremy Hunt extending it by the back-door?http://www.iptegrity.com 2 February 2011