Challenge to Digital Economy Act

News that TalkTalk and BT are challenging the Digital Economy Act in court is extremely welcome. It is a vindication of our view that the legislation should not have been rammed through parliament in the dying days of the last government.

The government at the time ignored the fact that EU legislation requires that the Commission be given three months to ensure that ‘technical’ legislation complies with relevant EU laws. This includes data protection, privacy and ecommerce legislation. It will be very interesting to see the details of their case.

In the meantime, Ofcom’s informal discussions are finding the omissions inherent in the Digital Economy Act difficult to deal with. No privacy impact assessment was undertaken when the bill was rushed through parliament and we hear that the Information Commissioner is defining IP addresses as being personal data in the context of the notification process established by the Digital Economy Act.

Since they are being used to identify subscribers, and accuse them, this seems only right. This means that rights of access to that information apply, we believe, including from the third party agencies who will collect the IP addresses on behalf of rights holders.

Ofcom have also been keen to avoid questions about the real effect of receiving notification, which are technical measures.

Other provisions of the Digital Economy Act also cause considerable headache as the difficult questions in relation to public intermediaries and open wifi have been avoided by the consultations, ministers, the Digital Economy Act and now Ofcom. The Act requires “subscribers” to take ‘reasonable steps’ to close their network from abuse, and Ofcom does not wish to discourage open wifi networks, they say.

But if you run an open access network, without requiring users to register, what reasonable steps could you take? Port blocking and firewalls are ultimately pretty useless. Much Bit torrent traffic is also entirely legitimate. Many users on many networks may wish to use this traffic, so taking ‘reasonable steps’ to stop the use of bit torrent to infringe copyright without stopping legitimate uses is very difficult, if not impossible.

This puts universities, libraries and open source businesses in an impossible position, and we hear that companies are already advising people to close down wifi networks, to avoid legal risks. Ofcom is now passing the “reasonable steps” bug to the Appeals Body.