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April 21, 2011 | Peter Bradwell

The Digital Economy Act: where we go now

Yesterday morning Justice Kenneth Parker handed down his ruling on the Judicial Review of the Digital Economy Act. The Judge dismissed all grounds save for one aspect of the claim about the costs imposed on ISPs. The ruling means that Justice Parker deemed the other provisions of the Digital Economy Act are consistent with EU law.

So what does this mean for those of us who place privacy, freedom of expression and due process ahead of chasing fictional losses from the creative industries' revenues? On the face of it the decision feels like bad news for those who see important flaws in the Act. But it just means that this particular route to halting what we think is a damaging law may not work, depending on whether BT and TalkTalk appeal.

It's important now to regroup around the principles behind criticisms of this sort of law, whether it is for example our concerns for the appropriate respect for people's privacy, concerns about liability for public wif-fi providers, or the looming spectre of inappropriate website blocking arrangements. These policy arguments are not over.

The ruling is an assessment of the Act's consistency with EU rules on how governments are allowed to legislate. It is not a judgement about whether or not the Digital Economy Act is right in policy terms. That was not the Judge's role; it is emphatically not a ruling on whether the Act represents a good policy judgement. The judge's reticence to intervene in the assumptions and judgements made by politicians helps demonstrate that this battle lies in convincing our decision makers that there are better policy decisions.

We know the Digital Economy Act remains a threat to the basic rights of users of the Internet, and that it infringes upon these rights for no proven gain. It will likely have a chilling effect on the provision of public wi-fi because it sets up the possible liability for, for example, cafes, schools or hotels. The method of gathering evidence of infringement and linking it to subscribers means that those identified may have done nothing wrong.

There are inevitable threats to people's privacy as large lists of alleged infringers are held by ISPs and ultimately the rights holders too. There is also the looming threat that in the future, subscribers may after a certain number of complaints face technical measures – which is the Act's special phrase for 'making your Internet go much slower or be temporarily turned off.'

And this is all for no proven gain. The evidence used to justify the Act concerning the impact of file-sharing on revenues and the likely benefits of these measures is very highly contested, perhaps even more so than when it was passed. The judge made no rule on the veracity of such figures, taking the position that it is not for him to decide on the policy assessments of elected decision makers.

So while there is disappointment for those of us campaigning against this kind of flawed policy, it swerves the question of whether these were good or bad decisions.

And we're working harder than ever.

Bad decisions build movements against them. Whether it is ID cards or the poll tax, history is littered with examples of governments charging ahead with illegitimate ideas that are ultimately abandoned because they are wrong, and people do not accept them.

You can continue this fight - and battles for your privacy and free speech - by joining ORG today. You can donate whatever you like: how much do you value your freedom?


Further information

We intervened in the Judicial Review in support of the arguments made by BT and TalkTalk - you can read our submissions here. A useful background to where the Judicial Review came from can be found here.

To catch up on what happened at the Judicial Review hearing, there are daily summaries here: Day 1, Day 2, Day 3, Day 4

There's a good initial round-up of the ruling up at James Firth's blog here.

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Comments (2)

  1. Nom du Clavier:
    Apr 21, 2011 at 03:17 PM

    Just a tiny example off the top of my head why the DEA would also stifle the economy: If providers of wi-fi are liable for 3rd party use and hotels and/or convention centres stop offering internet access, then how many events like TED, Linux (and other technical) symposiums, and similar will have their respective organisations decide to give the UK a miss and find a more hospitable place for their speakers and others in attendance?

    The number of conferences UK venues won't host as a result doesn't consider the secondary effects on suppliers to those venues, or how fewer high-tech venues might affect the brain capital of the population and the resulting economic position going forward.

    There are many more things unknown about the direct and secondary effects on seemingly unrelated industries than can be said with any absolute certainty on how it would improve the lot of those pushing for it to be adopted.

  2. Pete:
    Apr 21, 2011 at 04:32 PM

    AN exquisite irony is this; the UK's largest ISP BT are the single biggest infringer of intellectual property/copyrights bar none.

    Use of industrial espionage systems like Phorm infringe copyright and intellectual property rights on an epic scale, and yet no law enforcement will act.



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