Digital media: The Digital Economy Bill

Published on 03 October 2016

The Government has published the Digital Economy Bill (the Bill), which will implement a number of Government commitments on the digital economy made in the Conservative Party manifesto, the ambition being to make the UK “the most digital nation in the world”.

The Bill is divided into six parts:

  • Access to digital services

– The creation of a new broadband Universal Service Obligation, to ensure everyone has the right to request 10Mbps broadband

– Ofcom will set requirements on providers to: make available more information to customers, including complaints, statistics and accurate broadband speeds; and to follow Ofcom procedures when customers wish to switch provider and entitle customers to compensation if they do not.

  • Digital infrastructure

– The aim here is to: reform the Electronic Communications Code to deliver better coverage in rural areas through greater investment and faster rollout of mobile and broadband infrastructure; bolster communications providers’ rights to acquire land (more akin to the regime enjoyed by utility providers), subject to a stronger “access principle” and public interest test; make it easier for digital communications companies to upgrade and share their equipment and get faster access to maintain sites; and to enable Ofcom to use new technologies to better manage radio spectrum to increase the capacity of mobile broadband.

  • Online pornography

– A new legal requirement for commercial providers to have in place robust age verification controls for online pornographic content in the UK, establishing a new regulatory framework underpinned by civil sanctions to enforce compliance.

  •  Intellectual property

– This equalises the penalties for online copyright infringement with laws on physical copyright infringement (so an increase in the maximum sentence of imprisonment for online copyright infringement and infringement of a performer’s making available right from two to 10 years).

– There is also a proposal for a new online design registration system, known as web marking, to make it easier for design owners to protect their rights.

– S.73 CDPA is repealed, which provided that copyright is not infringed where a wireless broadcast of the core public service broadcaster channels (BBC, ITV1, Channel 4, Channel 5 and S4C) is retransmitted by cable. The purpose of s.73 was to facilitate broadcasts in areas it was hard to reach with analogue broadcasting, but this was outdated and created a loophole for online streaming services to exploit.

  • Digital Government

– An improvement in public services though better use of data, whilst safeguarding citizens’ privacy.

  • ICO guidance on direct marketing and Ofcom

– The Information Commissioner Offce’s guidance on direct marketing will be put on a statutory footing, by requiring the ICO to issue a statutory code of practice on direct marketing, which will enable better enforcement of the Data Protection Act 1998 and e-Privacy Regulations (SI 2003/2426).

– Ofcom will get new information collection powers against communications providers, which the Government hopes can be used to produce more timely and accurate national statistics.

Why is this important?

The Open Rights Group has described the Bill as “the drawer where all the ‘fix the internet’ ideas... have ended up”. It’s worth keeping an eye on, as the (rather vague) title of the Bill disguises important developments, which unchecked may catch out some operators.

For example, what constitutes robust age verification controls, as proposed for the porn sites. Will the operators of those sites really care to the same degree about personal data? Put another way, as the Open Rights Group argues, won’t the lure of disclosure of sexual preferences coupled with (potentially) credit card data prove too tempting for online blackmailers? And will the robustness test for age verification start to make its way into other industries eg online gaming, possibly even online video?

And does the Bill also signal a new desire by Government to adopt regulator’s guidance onto a statutory footing? Either way, the Bill highlights the fact that direct marketing is high on the
Government’s list of data activities in need of a statutory “fix”.

What’s next?

The Bill had its first reading in the House of Commons on 5 July 2016, and will next be considered at second reading (a date for which has not yet been fixed). There is some way to go before the Bill has progressed through both Houses to become law, so watch this space.