Privacy & Information Security Law Blog

On April 8, 2010, the Digital Economy Act (the “Act”), containing provisions relating to online copyright infringement, network infrastructure and digital safety, became law in the UK.  The Act’s main provisions include:

• new duties for the Office of Communications (the UK’s communications regulator), to report every three years on issues such as the UK’s communications infrastructure and Internet domain name registration;
• additional obligations on Internet Service Providers (“ISPs”) that seek to reduce online copyright infringement;
• increased penalties for online copyright infringement; and
• intervention powers with respect to Internet domain registries.

The Act has been, and continues to be, the subject of much criticism and debate.  The most controversial provisions of the Act are those that seek to reduce online copyright infringement, including:

• an obligation on ISPs to notify their subscribers whose IP addresses are reported by copyright owners as being used to infringe copyright;
• an obligation on ISPs to provide anonymous copyright infringement lists to copyright owners, which may then be used to obtain a court order requiring the disclosure of the identities of the individuals on the list; and
• the power granted to the Secretary of State to enact, in limited circumstances, additional laws that would allow the courts to grant a blocking injunction in respect of an Internet location that the court is satisfied has been, is being, or is likely to be used for, or in connection with, an online copyright infringement activity.

Commentators have taken the view that such provisions potentially may have serious implications for citizens and businesses because they impose an affirmative obligation to monitor networks to avoid being held liable for infringements committed by third parties.  In addition, critics argue that the UK has set a dangerous precedent which other countries may follow, resulting in the monitoring of online activities becoming the norm.  Such developments could lead to infringements of the right to privacy, recognized in most countries as a constitutional or statutory right.

The final text of the Act, which was published on April 12, 2010, may be accessed on the website of the Office of Public Sector Information.