The Digital Economy Act received royal accent on April 12 2010 in a legislative attempt to combat online copyright infringement as well as other issues arising from the development of the digital era.
Generally, the Act looks to reform the law in this area by introducing provisions whereby Internet Service Providers are obliged to assist a complainer on receipt of what will be known as a Copyright Infringement Report (CIRs) by identifying the alleged infringer and informing them of the CIR. ISPs are also obliged to keep records of infringers and in certain circumstances, supply certain information to the complainer to allow him or her to obtain a court order preventing infringement. The Act also includes scope for the Secretary of State to force ISPs to take further technical action against the most serious offenders e.g. by limiting a user's internet access or blocking websites.
The long-awaited Act was controversially passed having undergone minimum scrutiny and debate during the wash-up period of the previous Labour government, and since has been the subject of much scrutiny. While Ofcom is currently looking into whether the site-blocking provisions are indeed a practical measure for ISPs to take, BT and Talk Talk have challenged the online infringement provisions from a legal perspective. This legal challenge is on the grounds that the copyright provisions are a disproportionate response to unlawful file-sharing for ISPs, businesses and consumers alike. Furthermore, it is being argued that the content of the provisions breach European Union Directives and human rights legislation. As a result, the Act is to be subject to judicial review on March 22-24 2011 in the High Court of Justice.
The outcome of the judicial review is eagerly awaited and will no doubt mark the beginning of the end of the dispute over the controversial Digital Economy Act 2010. If BT and Talk Talk's challenge is successful the UK's plans for combating online copyright infringement, which is estimated to cost the country £400M a year, remain unclear….watch this space!
Click here for an overview of the Digital Economy Act 2010
© Thorntons Law LLP
14 March 2011
Loretta Maxfield and Lisa Mannion