The Digital Economy Bill, which is currently working its way through Parliament, is causing some lively debate among our digital communications and security clients.
It covers a wide range of topics, from Ofcom's duties to domain name management to the future of Gaelic broadcasting. However, the part causing the most controversy concerns illegal peer to peer ("P2P") file sharing.
The Government plans to introduce a "three strikes and you're out" system, meaning that repeat illegal P2P file sharers could have their IP addresses disconnected.
However, the proposals would also impose strict data collection rules on Internet Service Providers ("ISPs"), effectively requiring ISPs to police P2P activity. The Government estimates, in its Impact Assessment which was published last month, that the cost to ISPs of complying with the proposals would be between £290 million and £500 million. ISPs have, not surprisingly, been critical of the draft proposals.
Further issues
In the latest controversy surrounding the bill, Google, Yahoo, eBay and Facebook have written to Lord Mandelson asking him to remove a clause from the bill which gives Mandelson or any other nominated person the power to amend copyright law as they deem appropriate. The clause is intended to enable the Government to keep up to date with technological advancements by amending legislation more quickly and efficiently.
The four internet power-houses, however, argue that the proposal to allow amendment to copyright law would introduce business uncertainty and the potential for escalating costs of complying with legislative amendments. The letter also states that this would "discourage innovation (and) impose unnecessary costs&potentially unsettling the careful balance of responsibilities for enabling market change which Lord Carter outlined in the Digital Britain report".
The Department for Business, Innovation and Skills has responded to the letter by saying that such a clause is necessary to allow the Government to take action if new ways of infringing copyright were developed.
The start of wi-fines
Yet more controversy has been sparked by a recent case, thought to be the first of its kind, where a pub owner has been fined £8,000 after someone unlawfully downloaded copyrighted material over his/her open wi-fi connection. The pub owner - who has yet to be identified - provided the wi-fi service for his/her customers, one of whom downloaded the offending material.
Although the details of this case are not yet known, the headline message is bound to cause concern to businesses which seek to participate in the digital economy by providing such services. Some comfort can be taken from the bill, which proposes that providers of public communications services (such as open wi-fi connections) will be exempt from disconnection because they are providing a public service. However, to what extent this appeases digital service providers remains to be seen.
If you provide wi-fi access, consider introducing terms and conditions which impose liability on users for any breaches/losses arising from their actions.
Digital state of flux
As the Bill continues its passage through Parliament, it is bound to continue to attract criticism from ISPs, consumer groups and digital rights activists. With cases such as that of the pub owner above set to become more common, and with key players in the Digital Britain project continuing to lodge their concerns, we should expect to see further developments and amendments before the bill is passed as an Act of Parliament.
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If you have any questions on technology law issues, please call or email:
Robert Bryan: robertbryan@needhamandjames.com
Gareth Oldale: garetholdale@needhamandjames.com
Victoria Tester: victoriatester@needhamandjames.com
Natasha Minchella: natashaminchella@needhamandjames.com