MP confirms government to repeal website blocking provisions of DEA

To be brutally frank I was contemplating a hatchet job on LiCambridge MP Julian Huppert (Photo credit: Wikipedia)b Dem MP Julian Huppert's announcement today that the government was pressing ahead with its plans to repeal the website blocking...

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To be brutally frank I was contemplating a hatchet job on Li
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Cambridge MP Julian Huppert (Photo credit: Wikipedia)

b Dem MP Julian Huppert's announcement today that the government was pressing ahead with its plans to repeal the website blocking provisions [ss17 and 18] of the Digital Economy Act (DEA).

So here goes...  For three paragraphs, at least.

The Lib Dem conference is in full swing and this move was announced by the Department for Media, Culture and Sport (DCMS) back in June. On the surface this tweet seems well timed - for the Lib Dem's sake - to say the least.

Julian Huppert came in for criticism by a group of his own influential constituents, who told me privately over summer they were concerned that their MP wasn't critical enough of the government's plans to increase mass monitoring of email, social media messaging etc under the Communications Capabilities Development Programme (CCDP).

CCDP, incidentally, known informally as the Snooper's Charter, is due to be discussed at a Lib Dem conference fringe event this evening.

But there are plenty of reasons to cheer this small but positive step in the right direction

I put it to Julian that this announcement meant nothing, since the relevant sections of the Digital Economy Act were duplicated powers already available through S97A of the Copyright, Designs and Patents Act (CDPA).

I also pointed out in any case the site blocking powers of the Digital Economy Act stood dormant today - they couldn't be enacted without a new vote of both Houses of Parliament, something the government has said it was not planning, so the repeal was meaningless.

Huppert disagreed, pointing out that repeal put these measures beyond not just this government but any future government, who would be forced to turn to primary legislation - a full Parliamentary Bill - in order to re-introduce them.

He also pointed out that provisions in S97A of the CDPA, whilst "not perfect" were "far less draconian" than the Digital Economy Act provisions, and on this point I agree wholeheartedly with Julian.  

I studied in detail High Court proceedings last year which lead to the blocking of filesharing sites Newzbin2 and The Pirate Bay by UK ISPs under S97A of the CDPA.  In his relevant rulings, Mr Justice Arnold set the bar reasonably high for any future orders.

The bar would be lowered significantly if provisions of the DEA were ever introduced.  Remarkably, the threshold described in ss17 of the Act is (my emphasis):

 ... is being or is likely to be used for or in connection with an activity that infringes copyright.

In theory a court would have been able to rubber stamp a blocking order suggested to the Secretary of State by the music or film industry even if the website wasn't currently infringing copyright (but would likely do so at some unspecified future point). 

I followed the passage of the Digital Economy Act from its painful conception over four years ago and I now know this astonishing wording was most likely designed to tackle unlawful streaming of live sporting events, where an order would be sought in advance of the actual event.

So in truth I've been quite hard on Julian Huppert, who I know from personal experience has worked very hard over several years to improve the quality of digital policy in general and is well deserving of credit due for his work pushing for this repeal over the last 18 months.

This is a step in the right direction.  The DEA does not merely duplicate powers in the CDPA, it enhances them; and, just because the legislation was dormant, it doesn't mean a repeal is meaningless.

And on my challenge that this announcement today is cover for the Snooper's Charter, an incredibly emotional issue for the Lib Dems internally, Julian responded:

CCDP scrutiny is going very well from my perspective, less well from the Home Office' perspective 

Where now for the DEA?

I'm told Julian Huppert is now working on trying to improve the remainder of the troubled Digital Economy Act, which will see warning letters issued to those accused of piracy and potential disconnection for those who get caught three times; so-called three strikes legislation.

I have three main gripes with the remainder of the DEA that I hope can be fixed:

1.) Those accused of copyright infringement are treated as guilty under the 3-strikes process, they must fund their own appeal before any evidence is examined, and poor households will be far less likely to do this. 

2.) There is no special dispensation for those offering open public internet access, such as colleges, libraries, cafes and hotels; meaning there will be a disincentive to offer such access when the copyright measures finally come into force.

3.) The whole process is a costly mess, £5.9m by central government before the latest batch of delays were announced (revealed by my Freedom of Information Act requests).  The cost to schools, colleges and other public bodies establishing systems to deal with DEA warning letters and appeals is likely to be far higher.  

The Digital Economy Act has been a shambles from the start.  Measures were rammed through parliament after "unprecedented lobbying" from rights-holders in the dying days of the last government with the tacit support of the current government and no serious debate about the Act's effect on open WiFi, internet freedom and other unintended consequences.

The measures have suffered repeated delays (first warning letters now not due until 2014) and setbacks (arguments about the procedure for issuing warning letters, the fees to be charged, how libraries, schools, etc should be treated rumble on) and it's now time to kill the rest of this unholy mess.

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