Jeremy Hunt's Department for Culture, Media and Sport, not to mention the Olympics, (DCMS) has been rapped over the knuckles by a Parliamentary committee. The reason for the ticking off is a costs order for the 3-strikes measures in the Digital Economy Act. MPs believe that DCMS should have held the Order until after a consultation being run by Ofcom. Moreover, their report implies that DCMS should have got its act together properly before drawing up the Order in the first place.

The piece of legislation in question is the The Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012. This is a Statutory Instrument (SI) also known as secondary legislation, where the primary law is the Digital Economy Act 2010. The Order has come before Parliament and risks being passed without anyone knowing - that is what happens to the bulk of secondary legislation.

The importance of the Costs Order is that it establishes under law how the Digital Economy Act 3-strikes scheme will be paid for. Essentially, the ISPs costs will be split 75:25 between the rights-holders ( BPI, Motion Picture Association) an the ISPs. The costs order further specifies a £20 fee for making an appeal against a notification received.

On the same day as the DE Act Costs Order was laid before Parliament, Ofcom released a consultation on it.

It is highly unusual to lay an order before Parliament for passing into law, whilst a consultation is ongoing. In this case, where the consultation was published simultaneously, it looks a little too obviously like an attempt to manipulate the legislative process. Arguably, it represents a breach of procedure, because it is an attempt to pre-empt the consultation outcome, and fast-track the legislation without listening to stakeholder concerns - and before DCMS has established certain important details such as reasonable projections for the number of notifications to be sent.

It would be odd if Jeremy Hunt, already embroiled in lobbying scandal, would be the instigator. But it could reflect an attempt by our industry-cuddly regulator Ofcom to bully Parliament in a similar way to the previous Labour government that ramrodded the DE Act through the House of Commons, to the dismay of many MPs. (See DE Bill rammed through UK Parliament in 2 hours )

The DE Act Costs Order is currently with the Secondary Legislation Scrutiny Committee whose report has given DCMS a sharp slap.

The opinion of the Secondary Legislation Scrutiny committee is crystal clear:

"Some of the questions raised by the Committee and in the evidence we received apparently relate to parts of the wider implementation package that will follow this Order. DCMS should have given the House a much clearer explanation of how this Order fits into the wider policy context.[...]

We were also concerned about the unusual situation where DCMS have laid before Parliament an Order that is the subject of an ongoing consultation. DCMS assured us that the consultation relates only to the implementation of the Order and not to the instrument itself.

However, if DCMS is not yet clear about how the scheme will be implemented, it raises questions about how can they set the level of an appeal fee that satisfies the terms of the Treasury Rules for full cost recovery."

Anyone may submit to the Ofcom consultation on the Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012 - deadline 18th September.

This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, Did Ministry breach procedure in DE Act costs order? , in www.iptegrity.com, 18th July 2012 . Commercial users - please contact me.

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