PART 2: This series, written by Will Tovey of the Pirate Party UK, 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. It has been reproduced with the permission of the author.
The Initial Obligations Code of the Digital Economy Act 2010 is designed to reduce online copyright infringement by educating those accused of infringing and warn them of the legal consequences if they persist. However, any legal action taken against the alleged infringer is restricted to what could be done before the Act came into force; i.e. a copyright holder must first sue the ISP to obtain the identity of the subscriber, and then they must sue the individual subscriber. This is where the second prong of the measures to tackle online copyright infringement comes in; the obligations to limit Internet access.
Obligations to Limit Internet Access
These are defined in Sections 9 to 12 of the Digital Economy Act (which create Sections 124G to 124J of the Communications Act). They consist of technical obligations (imposed by the government on ISPs) and technical measures (put in place by ISPs on their subscribers). However, Section 124H (2) states that these cannot be put into place until at least 12 months after an Initial Obligations Code is in force but this does not stop Ofcom working on the Code before then. The earliest these obligations are likely to come into force is January 2012.
Technical Obligations
Under Section 124H (1) of the Communications Act 2003 (as amended by the Digital Economy Act) the government may impose “technical obligations” on ISPs if they consider it appropriate. A technical obligation is defined in Section 124G (2) as an obligation on an ISP to impose some sort of “technical measure” against some or all of its subscribers, solely for “preventing or reducing” online copyright infringement, provided those subscribers are already on a copyright infringement list as defined in the Initial Obligations Code. This only means that the subscriber must have received at least one notification under the IOC – as with much of the content of the Digital Economy Act, the rest of the details are left to Ofcom.
Technical Measures
The types of technical measures that can be imposed are listed in Section 124G (3) and are listed as follows:
- Something that “limits the speed or other capacity of the service provided to a subscriber” – this would include bandwidth throttling or placing download caps.
- Something that “prevents a subscriber from using the service to gain access to particular material, or limits such use” – this would likely be website-, protocol- or port-blocking targeted at the specific subscriber (rather than the entire service).
- Something that “suspends the service provided” – and this is the infamous disconnection. Note that there is nothing that states these measures must be removed after a certain time period, so this “suspension” could last indefinitely.
- Something that “limits the service provided … in any other way” – and finally a completely generalised measure. Essentially, this means that government can force any limit on anyone’s Internet connection provided they can show it might prevent or reduce online copyright infringement.
The Technical Obligations Code
As with the first set of obligations, the technical measures must also be regulated by a code, created by Ofcom and approved by Parliament. This is defined in Section 124I of the Act and the following section lays out a set of conditions it must satisfy. These are fairly similar to the requirements of the Initial Obligations Code and include that the Code must be objectively justifiable – Section 124J (1)(e), proportionate – 124J (1)(g) and transparent – 124J (1)(h).
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