Digital Economy Act 2017

Digital Economy Act 2017

Parliament of the United Kingdom
Long title	An Act to make provision about electronic communications infrastructure and services; to provide for restricting access to online pornography; to make provision about protection of intellectual property in connection with electronic communications; to make provision about data sharing; to make provision in connection with section 68 of the Telecommunications Act 1984; to make provision about functions of OFCOM in relation to the BBC; to provide for determination by the BBC of age-related TV licence fee concessions; to make provision about the regulation of direct marketing; to make other provision about OFCOM and its functions; to make provision about internet filters; to make provision about preventing or restricting the use of communication devices in connection with drug dealing offences; to confer power to create an offence of breaching limits on ticket sales; to make provision about the payment of charges to the Information Commissioner; to make provision about payment systems and securities settlement systems; to make provision about qualifications in information technology; and for connected purposes.
Citation	2017 c. 30
Introduced by	John Whittingdale (Commons) Henry Ashton, 4th Baron Ashton of Hyde (Lords)
Territorial extent	England, Wales, Scotland and Northern Ireland
Dates
Royal assent	27 April 2017
Other legislation
Relates to	Digital Economy Act 2010
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended

The Digital Economy Act 2017 (c. 30) is an Act of the Parliament of the United Kingdom. It is substantially different from, and shorter than, the Digital Economy Act 2010, whose provisions largely ended up not being passed into law. The act addresses policy issues related to electronic communications infrastructure and services, and updates the conditions for and sentencing of criminal copyright infringement. It was introduced to Parliament by culture secretary John Whittingdale on 5 July 2016. Whittingdale was replaced as culture secretary by Karen Bradley on 14 July 2016. The act received Royal Assent on 27 April 2017.^[1]

Provisions

The provisions of the act include:

• Allowing data sharing between government departments in order to provide
  Digital Government.^[2]
• Creating a
  culture secretary Nicky Morgan stated that the government had abandoned the mandate altogether, in favour of replacing it with a forthcoming wider scheme of Internet regulation.^[10][11][12]
• Requiring Internet service providers to use Internet filters to block all websites that have adult content, unless customers have opted out.^[2]
• Introducing a
  Universal Service Obligation which allows users to request broadband speeds of at least 10 Mbps. The obligation is to be introduced by 2020, and Ofcom are empowered to subsequently increase the minimum broadband speed requirement.^[2]
• Requiring Internet service providers to provide compensation to customers if service requirements are not met.[13]
• Allowing Ofcom, the communications sector's regulator, to financially penalise communications providers for failing to comply with licence commitments.^[13]
• Requiring mobile telephony providers to offer a contract cap to customers limiting monthly spending to an agreed figure.^[2]
• Providing for increased penalties for nuisance calls.^[13]
• Updating the
  telecommunications companies to erect and extend mobile masts.^[14]
• Extending Public Lending Right to remotely lent e-books^[15] (section 31 of the Act).
• Modifying the Copyright, Designs and Patents Act 1988 to raise the maximum sentence for Internet copyright infringement to 10 years in prison,^[2] and allowing English and Welsh courts a greater range of sentencing options in such cases.^[13]
• Modifying the Copyright, Designs and Patents Act 1988 to allow public service broadcasters to charge retransmission fees.^[2]
• Giving Ofcom oversight of the BBC^[13] as its external regulator.^[2]
• Empowering Ofcom to require
  public service broadcasters to include a minimum quantity of children's programming made in the United Kingdom.^[2]

• An amendment to the bill making it an offence to use "digital purchasing software" to purchase an excessive number of event tickets for ticket resale^[18] was withdrawn at the committee stage.^[19] However, a subsequent amendment giving the government the power to create a new criminal offence of using Internet bots to bypass limits on maximum ticket purchases set by event organisers was included in the final bill, with offenders potentially subject to unlimited fines,^[20] and this came into force in July 2018.^[21]
• An amendment to the bill was put forward making it an offence to publish or host on-line footage or photographs in cases where the distributors "knew or ought to have known" that it "involved exploited persons". The amendment was subsequently withdrawn.^[22]
• An amendment to the bill was tabled clarifying the employment rights of workers for digital services such as Uber.^[23]
• An amendment to the bill was tabled by the shadow minister for digital economy
  Matthew Hancock^[25] and became part of the act.^[26]
• An amendment requiring the universal prominence of public service broadcasters in digital television
  electronic program guides was modified so that the act as passed requires Ofcom to report in 2020 on how such prominence can be ensured in the context of greater on-demand viewing.^[2]
• In October 2016 a clause entitled: "Power to provide for a code of practice related to copyright infringement" was proposed after a lobbying campaign led by copyright holders.[27] The amendment would have required search engines to de-list sites linked to piracy from their search results. It would also have granted the government powers to investigate and sanction search engine operators for failure to comply.^[4] The clause was not included in the final act.^[2]
• In November 2016, following pressure from MPs, the government proposed
  BBFC were expected to become the regulator, this caused discussion about ISPs being required to block content that is prohibited even under an R18 certificate,^[31][32] the prohibition of some of which is itself controversial.^[32]
• An amendment in the House of Lords raising the Universal Service Obligation for broadband to 30 Mbps was abandoned as being too ambitious.[2]

Although privacy and technical safeguards for the sharing of citizens' data are not included in the act, the government stated that it intended to publish codes of practice following a public consultation.^[17] The consultation took place in the Autumn of 2017.^[33]

Reaction

The

The ORG also raised concerns over the risk of misuse of bulk data sharing.[34] The provisions regarding copyright infringements were criticised for the vagueness of the definition and the severity of the maximum sentence (10 years in prison). BILETA, the British and Irish Law, Education and Technology Association, also criticised the proposal to increase maximum jail term in its submission to the Government's consultation. The proposal was described as 'unacceptable', 'unaffordable', and 'infeasible'.^{[36][37][38][39]} It has been suggested that this provision may be intended to dissuade users of technology such as Kodi software from downloading content that breaches copyright regulations.^[40]

A number of expert witnesses to the Digital Economy Bill Committee expressed concerns about the bill. Jerry Fishenden, co-chair of the Cabinet Office’s Privacy and Consumer Advisory Group until he resigned in protest on 2 May 2017,^[41] expressed the opinion that the bill was based on an "obsolete" model of data sharing. He commented: "I find it surprising the bill doesn’t have definition of what data sharing is, both practically and legally… I’d like to see some precision around what’s meant by data sharing. The lack of detail is concerning." He also said that the bill "appears to weaken citizens’ control over their personal data", something that is "likely to undermine trust in government and make citizens less willing to share their personal data".^[42]

David Kaye, a special rapporteur for the United Nations, wrote an open letter to the UK government in 2017, raising concerns about the bill. Kaye questioned the legality of the proposed framework in relation to the International Covenant on Civil and Political Rights.^[43]

Jeni Tennison, CEO of the Open Data Institute, commented on the lack of transparency regarding existing public sector data sharing agreements and how the bill's measures fit with them. She spoke of her belief that the bill lacks the transparency needed to avoid the kind of problems that arose with NHS Digital's abandoned Care.data programme. Mike Bracken, chief digital officer at the Co-operative Group and former head of the Government Digital Service, expressed the opinion that "the government relies on bulk data sets too often, instead of simply asking for the individual data set pertaining to the information needed". The civil liberties and privacy advocacy group Big Brother Watch told the committee said that bill overlooked the work of the Government Digital Service in setting up the GOV.UK Verify scheme, a model based on the government not centrally storing data.^[44]

The

In October 2019, Nicky Morgan MP said that the government had shelved plans to introduce age verification checks for Internet pornography.^[47] Four age verification providers subsequently launched legal action to force the government to bring in the porn age ban in January 2020, a move that was supported by children's charities.^[48] Their argument that there is accepted legal precedent that a Government cannot pass a law, secure Royal Assent for it and then frustrate the will of Parliament by deciding not to introduce it^[49] saw them win permission in July 2020 for a judicial review.^[50]

The government announced in October 2020 its intention to repeal part 3 of the Act, which contains the age verification mandate.

• Investigatory Powers Act 2016
• Proposed UK Internet age verification system

Further reading

• Romero-Moreno, F and Griffin, J (2016), "Criminal copyright proposals: are they appropriate in the information era?", in European Journal of Law and Technology, 25 September 2016

References