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Tuesday, 6 March 2012

Digital Economy Act Judicial Review mostly fails, but we still don't have workable legislation

Word from the Court of Appeal comes via @OpenRightsGroup. The review has failed on all but one ground, the cost of case fees.  I'll update this post with details here when they're published.

UPDATE 10:42: There really are no relevant details. Sources in court tell me the appeal went along the lines of the review findings last year.  Here's a link to the judgement.

UPDATE 11:36: Hearing from an ISP contact that ISPs may cut their losses on this Judicial Review to pursue a more detailed challenge to the implementation of the Digital Economy Act and in particular a statutory instrument known informally as the Digital Economy Act Initial Obligations Code when it's published, rather than try and appeal this ruling to the Supreme Court. I'll try and get confirmation.

UPDATE 13:56: see here for a primer on costs sharing and the next legislative steps.

It is important to remember however that the Government is still struggling to implement the legislation nearly 2 years after it was passed.

Sources very close to the situation tell me the biggest sticking point is how to offer some protection to schools, libraries, cafes, hotels and others those who provide internet access to the public but are not classed as an ISP.

There has been a growing awareness in Government that attempts to make the ISP account holders effectively liable* for copyright infringement over their connection could not only cause a costly administrative headache for public bodies such as schools and libraries, it could also impact the government's drive to bridge the digital divide and get more of the country connected to faster broadband services.

* Lawyers are quick to point out account holders are not strictly liable, but the way the DEA and process of appeal is structured means the onus is on an account holder to prove innocence, which is very worrying.

Ofcom is actively considering plans to open up radio spectrum to allow individuals and small community groups to run wireless hotspots using WiMAX or souped-up WiFi technology.  This so-called "white space" spectrum could be allocated with zero or minimal licensing cost and could be operated by anybody to help improve rural broadband in particular.

But if the owners of such access points become liable for copyright infringement on their connection they will be discouraged from operating such services.  Since this technology is unlikely to ever be profitable enough for a major ISP to operate, the public will lose out.

Schools, libraries, universities and colleges have maintained immense pressure on Ofcom and the Department for Media, Culture and Sport (DCMS) after highlighting the huge cost of Digital Economy Act compliance to public bodies providing internet access.

And consumer groups such as Consumer Focus and the Citizens Advice Bureau have raised concerns that a £20 fee to appeal a mere allegation of copyright infringement made against the ISP account holder will disproportionately affect low income households, who could be denied access to justice.

Ding dong

I'm told of an ongoing spat between Ofcom and DCMS over whether Ofcom are legally able to make provisions to protect those who re-share an internet connection to the general public.

Ofcom claim that a change to the law is required, whilst DCMS lawyers claim not.

I'm told debate between the Government and the communications regulator Ofcom centres on complex provisions of the Communications Act 2003 and in particular S.403(7) which appears to grant Ofcom the powers needed to make a distinction between types of service providers in relation to how the provisions of the Digital Economy Act apply.

Ofcom however, according to sources, claim that subscribers (end users) cannot be categorised in this way under the provisions of the Communications Act, as the Act applies only to service providers and very few institutions providing public WiFi could ever be classed as a service provider. Therefore a change in the law is required to allow Ofcom to make a distinction between different types of subscribers.

Meanwhile bodies representing libraries, schools and other public bodies are "losing patience" with the failure of government to act to protect public bodies when the legislation eventually becomes live (I'm told the target date for the first infringement notice is now slipping into "mid to late 2013").



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