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Thursday, 9 June 2011

Digital Economy Act to be "rebooted" before summer recess

1. Check cable, power and then reboot #deact
Jeremy hunt at election night 2010: J. Firth
Exclusive to my blog I've had several opportunities to collar officials very close to the continued progress of the Digital Economy Act and can reveal:
  • Minister(s) are driving a "reboot" (not my phrase) of progress to complete the remaining two pieces of legislation required before the Act comes in to force
  • Both the draft Cost Sharing Regulations (determining how much ISPs will pay towards copyright enforcement) and the Initial Obligations Code (determining how the notification and appeals process will work) will be notified to the European Commission before the parliamentary summer recess, meaning the three-month EC consultation period will have closed in time to lay both Statutory Instruments (SIs) before parliament in early autumn
  • Under the new more-aggressive timetable it's expected the first infringement notifications could hit the doormats as early as January 2012, although this is dependent on a "following wind".  It's certainly feasible for the legislation to pass both houses under the affirmative process for SIs, although how long it will take to establish the machinery for the appeals was not made clear to me.
  • Note: it's not clear what, if anything, will return from Brussels during the notification period under the Technical Standards Directive.  Officials and some MPs are privately worried that the system of notifying laws to Europe for technical regulations affecting telcos could "derail" parliamentary process.  It effectively adds a 3-month delay into each iteration in the event concerns are raised through the EC.
  • Ofcom has already delivered its review of the reserve powers for [overseas] website blocking under sections 17 and 18 of the Digital Economy Act to the DCMS, and the expectation is this will be presented to parliament as part of the reboot before summer
  • I've been told that the Ofcom review of site blocking is not much more than a balanced statement of the legal, regulatory and technical issues related to site blocking.  I read that as "it makes no clear recommendation"... Watch this space!
  • A statement on the Hargreaves review on copyright is being prepared to present to parliament, also as part of the "reboot", and also to be timetabled before the summer recess (timetabling considerations apply!).  I wonder whether this will be the carrot to the baton of the enforcement provisions?
  • Officials have privately admitted there is an expectation that the Initial Obligations Code could be challenged in a separate Judicial Review
  • They're also concerned that if ongoing legal action to block the provisions of the Digital Economy Act hit the European Court of Justice at any point the measures in the act would effectively "grind to a halt" and there could be further "significant" delays
  • Officials firmly believe the judgement in the Judicial Review into the act was a resounding vote of confidence for the Act.  I tried to find out whether this was the view of a minister - a nugget of spin to feed the pesky blogger! Or whether staff working on the act really believed this.  "No comment"
  • I put this last point to a leading digital media lawyer, who told me "that's not exactly my interpretation of what the judge said. If you read the judgement you'll find opinion broadly aligned with the claimant, especially in regards to proportionality.  But, without the Initial Obligations Code, the judge felt it was not possible to rule on this, especially as the bar is rightly set very high for a court to overturn the will of parliament."
In summary: after a year of delays, expect things to move far more quickly.

A rumour I'm hearing is the drive for faster progress on the DEAct comes mainly from one minister, and sources close to Ed Vaizey tell me it's not him, since I hear Ed prefers a lighter-touch approach to regulation.  Since there are only 4 ministers in the DCMS, and this issue has nothing to do with sport or tourism, can I assume the "reboot" is being driven personally by Jeremy Hunt?



  1. But what about the the BT/Talk Talk appeal, which they are currently waiting leave for, when will that be approved and if so, what effect will that have on the timetable??

  2. In a presentation by DCMS to a legal event FAST FLAG the DCMS expressed the view that the judgement in the review was a clear mandate to continue.

    The appeal hearing is not expected to be heard till Autumn and it was clear to me DCMS intention was to push on, with the "reboot" before the recess (subject to parliamentary timetabling considerations).



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