UK Government asks Ofcom to assess practicality of blocking copyright infringing web-sites


Jeremy Hunt, the UK’s Culture Secretary (who also has responsibility for telecoms) today asked Ofcom to review sections of the Digital Economy Act to assess whether it considers that the reserve powers enabling the courts to block access to copyright infringing web-sites could work in practice. This is apparently in response to comments posted on the new Government’s “Your Freedom” web-site.

Related provisions (3-18) of the Digital Economy Act have proved to be contentious and the Act itself is subject to a judicial review hearing in March initiated by BT and TalkTalk. The review announced therefore excludes questions of proportionality and compliance with European commercial law and the Human Rights Act as these are considered in the judicial review.

The press release explains that Ofcom’s terms of reference are to assess:

  • Is it possible for access to the site to be blocked by internet service providers?
  • How robust would such a block be – in other words would it have the intended effect, and how easy would it be to circumvent for most site operators?
  • What measures might be adopted by internet service providers to prevent such circumvention?
  • How granular can blocking be – i.e. can specific parts of the site be blocked, how precise can this be, and how effective?
  • How effective are sections 17 and 18 of the Act in providing for an appropriate method of generating lists of sites to be blocked?
  • If possible, identify either a potential range of costs for ISP blocking solutions or the main drivers of those costs.

Given the deeply held views on each side of this debate, I would expect that Ofcom’s review will be rather lively. So far as next steps are concerned I would expect that Ofcom is likely to consult by means of meetings, workshops and/or a formal consultation to gather views for its report. I will report on that as more detail emerges.

For those interested in the detail, Section 17 of the Digital Economy Act provides:

‘(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.

(2) “Blocking injunction” means an injunction that requires a service provider to prevent its service being used to gain access to the location.

(3) The Secretary of State may not make regulations under this section unless satisfied that—

(a) the use of the internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers,

(b) making the regulations is a proportionate way to address that effect, and

(c) making the regulations would not prejudice national security or the prevention or detection of crime.

(4) The regulations must provide that a court may not grant an injunction unless satisfied that the location is—

(a) a location from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright,

(b) a location at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or

(c) a location which has been, is being or is likely to be used to facilitate access to a location within paragraph (a) or (b).

(5) The regulations must provide that, in determining whether to grant an injunction, the court must take account of—

(a) any evidence presented of steps taken by the service provider, or by an operator of the location, to prevent infringement of copyright in the qualifying material,

(b) any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material,

(c) any representations made by a Minister of the Crown,

(d) whether the injunction would be likely to have a disproportionate effect on any person’s legitimate interests, and

(e) the importance of freedom of expression.

(6) The regulations must provide that a court may not grant an injunction unless notice of the application for the injunction has been given, in such form and by such means as is specified in the regulations, to—

(a) the service provider, and

(b) operators of the location.

(7) The regulations may, in particular—

(a) make provision about when a location is, or is not, to be treated as being used to facilitate access to another location,

(b) provide that notice of an application for an injunction may be given to operators of a location by being published in accordance with the regulations,

(c) provide that a court may not make an order for costs against the service provider,

(d) make different provision for different purposes, and

(e) make incidental, supplementary, consequential, transitional, transitory or saving provision.

(8) The regulations may—

(a) modify Chapter 6 of Part 1 of the Copyright, Designs and Patents Act 1988, and

(b) make consequential provision modifying Acts and subordinate legislation. …’

About Rob Bratby

Telecommunications, media and technology lawyer advising companies across Europe and Asia
This entry was posted in Broadband, Court decision, Fixed, Government policy, Regulatory action, Telecoms, UK and tagged , , , , , , , . Bookmark the permalink.

One Response to UK Government asks Ofcom to assess practicality of blocking copyright infringing web-sites

  1. Pingback: Frank MacDonald » UK Government asks Ofcom to assess practicality of blocking …

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