Digital Economy Bill 2016–17

The Digital Economy Bill 2016–17 is a bill of the Parliament of the United Kingdom. It is substantially different from, and shorter than, the Digital Economy Act 2010, whose provisions largely ended up not being passed into law. The bill addresses policy issues related to electronic communications infrastructure and services, and updates the conditions for and sentencing of criminal copyright infringement. It was introduced to Parliament by culture secretary John Whittingdale on 5 July 2016. Whittingdale was replaced as culture secretary by Karen Bradley on 14 July 2016.^[1]

Provisions

The provisions of the Bill include:^[2]

• Allowing Ofcom, the communications sector's regulator, to financially penalise communications providers for failing to comply with licence commitments.
• Creating an age-verification regulator to publish guidelines about how pornographic websites should ensure their users are aged 18 or older. The regulator should also be able to fine those which fail to comply. The BBFC has been commissioned to fulfil this role.^[3]
• Creating a legal right to minimum Internet download speeds for customers.
• Requiring Internet service providers to provide compensation to customers if service requirements are not met.
• Allowing English and Welsh courts a greater range of sentencing options for Internet copyright infringement.
• Providing for increased penalties for nuisance calls.
• Giving Ofcom oversight of the BBC.
• Updating the Ofcom Electronic Communications Code to make it easier for telecommunications companies to erect and extend mobile masts.^[4]

Timetable

The Government expects the bill to complete its passage through the House of Commons during the Autumn 2016. It will then move to the House of Lords. The Government aims to achieve Royal Assent by the end of Spring 2017.^[5]

Amendments

• An amendment to the bill extending Public Lending Right to remotely lent e-books was withdrawn at the committee stage.^[6]
• An amendment to the bill making it an offence to use "digital purchasing software" to purchase an excessive number of event tickets for ticket resale^[7] was withdrawn at the committee stage.^[8]
• An amendment to the bill was put forward making it an offence to publish or host on-line footage or photographs in cases where the distributors "knew or ought to have known" that it "involved exploited persons". The amendment was subsequently withdrawn.^[9]
• An amendment to the bill was tabled clarifying the employment rights of workers employed via a digital service such as Uber.^[10]
• An amendment to the bill was tabled extending the legal obligation on television broadcasters to include subtitles, sign language and audio description when providing video on demand.^[11]
• In October 2016 a clause entitled: "Power to provide for a code of practice related to copyright infringement" was proposed after a lobbying campaign led by copyright holders.^[12] The amendment would require search engines to de-list sites linked to piracy from their search results. It would also grant the government powers to investigate and sanction search engine operators for failure to comply.^[3]
• In November 2016, following pressure from MPs, the government proposed^[13] an amendment to the bill^[14] to allow the age verification regulator to require internet service providers to block pornographic websites that do not offer age verification.^[15] As the BBFC are likely to become the regulator, this has caused discussion about ISPs being required to block content that is prohibited even under an R18 certificate,^[16][17] the prohibition of some of which is itself controversial.^[17]

Reaction

The Open Rights Group have raised concerns over aspects of the bill. The provisions for the age verification of pornographic website users caused concern regarding the privacy of collected user data and the possible ineffectiveness of a method focussed on restricting payments. The proposals for bulk data sharing raised concerns over the risk of misuse.^[18] The provisions regarding copyright infringements were criticised for the vagueness of the definition and the severity of the maximum sentence (10 years in prison). BILETA, the British and Irish Law, Education and Technology Association, also criticised the proposal to increase maximum jail term in its submission to the Government's consultation. The proposal was described as 'unacceptable', 'unaffordable', and 'infeasible'.^{[19][20][21][22]}

A number of expert witnesses to the Digital Economy Bill Committee expressed concerns about the bill. Jerry Fishenden, co-chair of the Cabinet Office’s Privacy and Consumer Advisory Group, expressed the opinion that the bill was based on an "obsolete" model of data sharing. He commented: "I find it surprising the bill doesn’t have definition of what data sharing is, both practically and legally… I’d like to see some precision around what’s meant by data sharing. The lack of detail is concerning." He also said that the bill "appears to weaken citizens’ control over their personal data", something that is "likely to undermine trust in government and make citizens less willing to share their personal data". Jeni Tennison, CEO of the Open Data Institute, commented on the lack of transparency regarding existing public sector data sharing agreements and how the bill's measures fit with them. She spoke of her belief that the bill lacks the transparency needed to avoid the kind of problems that arose with NHS Digital's abandoned Care.data programme. Mike Bracken, chief digital officer at the Co-operative Group and former head of the Government Digital Service, expressed the opinion that "the government relies on bulk data sets too often, instead of simply asking for the individual data set pertaining to the information needed". The civil liberties and privacy advocacy group Big Brother Watch told the committee said that bill overlooked the work of the Government Digital Service in setting up the Gov.uk Verify scheme, a model based on the government not centrally storing data.^[23]

Academic analysis and reference sources

• Romero-Moreno, F and Griffin, J (2016) Criminal copyright proposals: are they appropriate in the information era? in European Journal of Law and Technology, 25 September 2016

See also

• Investigatory Powers Act 2016
• Digital Economy Act 2010

References