A Guide to the Digital Economy Act 2 – Technical Measures

This is the second in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. This part covers the technical measures that can be imposed on a subscriber to limit their Internet access. Some parts may be legally technical.

  1. Introduction and the Initial Obligations Code
  2. Technical Measures to Limit Internet Access
  3. Subscriber Appeals
  4. Web-blocking
  5. Summary

The Initial Obligations Code of the Digital Economy Act 2010 is designed to reduce online copyright infringement by educating those accused of infringing and warn them of the legal consequences if they persist. However, any legal action taken against the alleged infringer is restricted to what could be done before the Act came into force; i.e. a copyright holder must first sue the ISP to obtain the identity of the subscriber, and then they must sue the individual subscriber. This is where the second prong of the measures to tackle online copyright infringement comes in; the obligations to limit Internet access.

Obligations to Limit Internet Access

These are defined in Sections 9 to 12 of the Digital Economy Act (which create Sections 124G to 124J of the Communications Act). They consist of technical obligations (imposed by the government on ISPs) and technical measures (put in place by ISPs on their subscribers). However, Section 124H (2) states that these cannot be put into place until at least 12 months after an Initial Obligations Code is in force but this does not stop Ofcom working on the Code before then. The earliest these obligations are likely to come into force is January 2013 [Edited to reflect the situation as of April 2011].

Technical Obligations

Under Section 124H (1) of the Communications Act 2003 (as amended by the Digital Economy Act) the government may impose “technical obligations” on ISPs if they consider it appropriate. A technical obligation is defined in Section 124G (2) as an obligation on an ISP to impose some sort of “technical measure” against some or all of its subscribers, solely for “preventing or reducing” online copyright infringement, provided those subscribers are already on a copyright infringement list as defined in the Initial Obligations Code. This only means that the subscriber must have received at least one notification under the IOC – as with much of the content of the Digital Economy Act, the rest of the details are left to Ofcom.

Technical Measures

The types of technical measures that can be imposed are listed in Section 124G (3) and are listed as follows:

  1. Something that “limits the speed or other capacity of the service provided to a subscriber” – this would include bandwidth throttling or placing download caps.
  2. Something that “prevents a subscriber from using the service to gain access to particular material, or limits such use” – this would likely be website-, protocol- or port-blocking targeted at the specific subscriber (rather than the entire service).
  3. Something that “suspends the service provided” – and this is the infamous disconnection. Note that there is nothing that states these measures must be removed after a certain time period, so this “suspension” could last indefinitely.
  4. Something that “limits the service provided … in any other way” – and finally a completely generalised measure. Essentially, this means that government can force any limit on anyone’s Internet connection provided they can show it might prevent or reduce online copyright infringement.

The Technical Obligations Code

As with the first set of obligations, the technical measures must also be regulated by a code, created by Ofcom and approved by Parliament. This is defined in Section 124I of the Act and the following section lays out a set of conditions it must satisfy. These are fairly similar to the requirements of the Initial Obligations Code and include that the Code must be objectively justifiable – Section 124J (1)(e), proportionate – 124J (1)(g) and transparent – 124J (1)(h).

How will this Affect You?

At the moment it is hard to determine the precise effects of the technical obligations code as it is much more loosely defined than the initial obligations code. In particular, the threshold for applying the measures is based on the IOC and there are virtually no limits on what the measures can consist of. It is most likely, however, that those in favour of the imposition of technical measures will be seeking as harsh penalties as possible for those who may be infringing their copyright so it is likely that people may see their Internet slowed down, filtered or even their accounts disconnected (although it will probably be called a “suspension” – the two words are interchangeable). In theory such punishments will only apply to those who have infringed copyright, but there are no restrictions on the level of evidence required to impose such punishments contained within the text of the Act.

Fortunately, both sets of measures are subject to an appeals process, which will be described in the next section of this guide.

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