This is the fourth in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals.
- Introduction and the Initial Obligations Code
- Technical Measures to Limit Internet Access
- Subscriber Appeals
- Other Provisions and Summary
This series is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. Some parts may be legally technical
One of the most controversial parts of the Digital Economy Act 2010 is Section 17, entitled "Power to make provisions about injunctions preventing access to locations on the Internet". Put simply, this could be used to establish a system that would allow anyone to have content or websites blocked by ISPs based on an accusation of copyright infringement.
What Measures Existed Before
Before the Digital Economy Act, it was possible for a copyright owner to gain an injunction against a service provider from the High Court. Under Sections 97A and 191JA of the Copyright, Designs and Patents Act 1988 (as amended by the Copyright and Related Rights Regulations 2003), the Court can grant an injunction if it is proved they have "actual knowledge" that someone is "using their service to infringe copyright" - s97A(1). In practice, this means the copyright owner must notify the service provider and then take them to court (where they would need to prove the infringement) before anything would have to be done. The powers potentially available under the Digital Economy Act take this much further.
What Could Happen Under Section 17
It should be noted that all Section 17 does is allow the government to create these provisions at a later date and the ministers involved have indicated that they have no intention, at the moment, of using this power. Further, these powers could not be used unless the minister involved is satisfied that online copyright infringement is having a "serious adverse effect on business or consumers" - s17(3)(a), that the measures are "proportionate" to addressing that effect - 17(3)(b) - and that it would not adversely affect national security or the detection of crime - s17(3)(c). However, all three conditions are subjective and depend on one person's opinion. The secondary legislation needed to use these powers must be passed through Parliament, but not with the full scrutiny of an Act.
Section 17(1) allows provisions to be made permitting a blocking injunction to be made againstany location on the Internet which a court is satisfied has been, is being or is likely to be used for copyright infringement, or in connection with any activity involving copyright infringement. There are a lot of conditions here, so they will be dealt with individually:
- A blocking injunction is an order, made by a court, that would force a service providerto prevent access to part of their service or face criminal charges. This could involve a web-host having to remove content or sites on their system and ISP blocking access to particular websites or addresses, or any other interpretation a court or lawyer could come up with. There is no reason why such an injunction would have to have a time limit, nor that the operators of the location need have a right to be involved with the court proceedings.
- The injunctions can be made against any location on the Internet - s17(1). This is a particularly broad definition (although it would likely not cover forcing ISPs to block protocols) and could be used against entire domains or web-hosts, individual sites or individual files on a site. It is likely it could be used to block access to certain other "locations" such as chat rooms or any other aspect of the Internet that a judge could be convinced is a location.
- It is not necessary to show that the location is currently being used to aid copyright infringement. The law is again particularly broad in that it includes locations that were used in the past, but are no longer, or even that might be in the future - s17(4). While there are precedents for handing out punishments for potential actions in the future, it could be considered unusual when dealing with non-criminal copyright infringement.
- Finally, the location being blocked does not have to be (or to have been, or to be likely to be) hosting infringing material. The location must make available a substantial amount of material in a way that infringes - s17(4)(b), be a place from which such material can be obtained - s17(4)(a), or somewhere that could be used to facilitate access to such a location - s17(4)(c). This could cover not only sites that host infringing content themselves and those that provide means of accessing content (such as sites which index torrent files containing unlicensed material) but even those that link to such sites. In theory, doing this(something that many sites, including the BBC's, do) could make this website a target for such an injunction.
The Fine Details
When considering whether or not to grant an injunction there are several things they consider including any steps taken by either the service provider or location operator to prevent the copyright infringement, any steps taken by the copyright owner to "facilitate lawful access" to the content, whether an injunction could have a disproportionate effect on legitimate interests and "the importance of freedom of expression" - s17(5). The law also makes it clear that no injunction can be granted until both the service provider and the location operators have been notified of the application - s17(6). Finally, it is worth noting that while the provisions under this section may prevent a Court from ordering the service provider to pay the costs of proceedings, it need not - s17(7)(c). As such, it could be that the service provider is required to pay any or all costs of bringing the case to the Court (as was required in one of the drafts of this section). This would place considerable pressure to any provider to comply with the mere threat of someone seeking an injunction and could result in service providers "voluntarily" blocking locations on request.
How will this Affect You?
It is hoped that these measures will not affect anyone as the coalition government has indicated that it does not intend to use these powers. However, in the event that they, or a later government are convinced to do so, it is possible that the shape of the Internet could change significantly. At best, those websites notorious for being involved with online copyright infringement will be blocked at the ISP level or higher. This would represent the first case of compulsory, national Internet censorship. At worst, we could see many of the smaller or less established websites disappear under the threat of costly court cases. As in other countries where similar laws exist, we could see this process being used for censorship as well as combating copyright infringement; with the system being abused for silencing criticism or attacking competitors. Only those websites or services with the power to resist legal threats or withstand long court proceedings would be safe.
The final part of this guide will briefly cover the provisions in the Digital Economy Act that are not related to online copyright infringement.
The author is a law student and a member of the Pirate Party's Board of Governors. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk. This should not be taken as legal advice.