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Overview of the Digital Economy Bill 2016

The Digital Economy Bill 2016 (DEB), not to be confused with the Digital Economy Act 2010, has been published following announcement in the Queen’s Speech on 18 May that new legislation would be introduced “to improve Britain’s competitiveness and make the United Kingdom a world leader in the digital economy.” In this article, we take a brief look at the key aspects of the DEB.

Age checks for online pornography

The headline-grabbing provisions of the DEB are those relating to the regulation of online pornography:

  • Operators of pornographic websites and other means of accessing pornographic material ‘on a commercial basis’ will have to ensure that pornographic material is not accessible by under 18’s
  • A new ‘age verification regulator’ is to be established with responsibility for publishing guidance about which operators will be caught by the law
  • The new regulator will have the power to require any person it believes to be or have been involved in making pornographic material available, to produce any information the regulator considers necessary to decide whether to take enforcement action
  • The new regulator will be given powers to issue ‘enforcement notices’ (i.e. threats or warnings) and fines of up to £250,000 or 5% of ‘qualifying turnover’ (whichever is greater)
  • Operators who fail to comply with the new rules may be notified by the new regulator to Internet Service Providers (ISPs) and ‘payment providers’, though it will be up to them whether or not to do anything about those websites (such as adding them to blocking lists or parental filters)

The DEB does not suggest how age verification will work. However the Digital Policy Alliance, a cross-party lobbying body for the internet and technology sector, has an age verification working group which has suggested a number of principles and mechanisms for how this could work. The primary concern with age verification is the extent to which it will be anonymous, where a user’s identity is verified against a third party source such as a bank or mobile network provider.

It is as yet unclear how any of the above will work in practice, in particular, the extent to which the new regulator would have any success in taking enforcement action against non-UK based operators and whether ISPs are likely to take action against operators that have been notified to them.

As ever, there is a tension between outright censorship (which ISPs are reluctant to promote or enforce) and protecting vulnerable internet users from knowingly or unknowingly accessing “harmful sexualised content online”.

Penalties for online copyright infringement

One of the equally, if not more, controversial aspects of the DEB is the increased maximum sentence for online copyright infringement from two years to ten years. This brings the maximum penalty for online infringement in line with the maximum penalty for offline counterfeiting.

The idea, of course, is to deter online infringers and ensure that the UK’s legal framework supports content producers. Will this mean that we will see innocent or occasional infringers behind bars? This seems unlikely and in its consultation response on the proposal, the Intellectual Property Office commented:

“…the Government is not aware of any cases where existing legislation has been used to prosecute someone where there was only a very minor infringement…the Government accepts that there are concerns and the policy intention is that criminal offences should not apply to low level infringement that has a minimal effect or causes minimum harm to copyright owners, in particular where the individuals involved are unaware of the impact of their behaviour.”

Government data sharing

The Government believes that if public authorities are able to share personal data belonging to citizens with other public bodies, this could improve efficiency and enable the Government to provide the right services at the right time and develop more responsive policies. With these objectives in mind, the DEB introduces provisions that will facilitate data sharing where there is a public benefit and subject to the concerned authorities complying with a code of practice to ensure that data protection rights are protected.

The digital campaigning organisation Open Rights Group has expressed some concern about these provisions, stressing that appropriate safeguards need to be put in place to protect personal information.

Access to digital services and improving digital infrastructure

The most positive aspects of the DEB are aimed at furthering the Government’s ambition for the UK to be “the most digital nation in the world – a place where technology transfers the economy, society and government.” These include:

  • Introduction of a new ‘Broadband Universal Service Obligation’ which, following consultation with industry stakeholders, aims to give businesses and consumers in the UK a legal right to request an affordable broadband connection no matter where they live or work
  • Provisions enabling Ofcom to require providers to supply a wide range of information which will made available to third parties to develop innovative apps and consumer tools
  • A new requirement on providers to make it easier for customers to switch providers, with automatic compensation becoming payable for a failure to meet the prescribed standards

What will happen next?

As a Bill of Parliament, the DEB will have to make its way through the House of Comments and the House of Lords before it is passed into law. This process is expected to complete in Spring 2017. It will be interesting to see how the DEB develops during the legislative process, particularly in relation to the online pornography and data sharing aspects.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Categories: Commercial | Licensing & Regulatory | Digital Media & Technology

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