The Digital Economy Bill 2016 was announced int he Queen's Speech and it is the legislative vehicle that consolidates several policy initiatives that ORG has engaged with over the past two years.
Bill supporting documents: https://www.gov.uk/government/publications/digital-economy-bill-overview
Bill in parliament: http://services.parliament.uk/bills/2016-17/digitaleconomy.html
Digital Economy Bill outline
• Part 1: Access to Digital Services
This part of the bill seems the least controversial and possibly welcome. The government is introducing a new broadband Universal Service Obligation (USO) of 10Mps and enhancing Ofcom’s powers to demand more transparency and compliance. We need to analyse this part of the Bill to look for potential pitfalls or improvements that can be presented as amendments.
• Part 2: Digital Infrastructure
This is a highly technical series of measures dealing with a range of infrastructural issues, from land acquisitions to spectrum management. We absolutely need help to unpick any issues that we may arise.
• Part 3: Online Pornography
The government is finally making it compulsory for all porn websites available in the UK to implement age verification. The Bill covers all websites designed for sexual arousal, including 18 classified and not only R18 (the hardcore that must be sold only in sex shops), located anywhere in the world. On demand services are excluded though, and we need to explore the implications of this. A new regulator will be created to deal with this phenomenally challenging idea. The mechanisms for age verification are not defined. Debit cards have previously been rejected and it is very unclear how this would work. The Digital Policy Alliance (DPA) has been working behind the scenes with the porn industry to try to define an industry led standard for this, trying to avoid mandatory measures. We have heard vague ideas about using smart crypto and decentralised trust frameworks similar to Verify, but there are no details available. There are clear privacy and security issues here. One problem is that joining the DPA costs a lot of money and we may need to start a public campaign just to access the policymaking space.
The enforcement appears to be based on the wider “follow the money” approach we see in copyright debates. The regulator will work with payment providers to remove sources of income. It is very unclear how this is going to stop advertising funded websites, also because those seem to run their own porn related ad networks. The bill mentions injunctions, but we need to analyse properly their extent.
Original proposals to use the existing web blocking infrastructure for the mandatory blocking of all porn websites unless they complied - a whitelisting of age verified sites - seem to have been abandoned. But it is unclear if an aggressive regulator could use the powers in the Bill to block sites. We have concerns that making payment providers a core element of enforcement is part of the slippery slope away from due process and clear state responsibilities in internet regulation.
• Part 4: Intellectual Property
The penalties for “online infringement” (communication to the public) are being increased from 2 to 10 years. We run a campaign during the consultation and it seemed that we had won the argument, but political pressure eventually bypassed the consultation process. Partly in an attempt to deal with headlines that this was “10 years for filesharing", the IPO has rewritten the definition of criminal liability. They told us during meetings that the new definition would make it very clear that the individuals we were concerned about would not be targeted. Unfortunately the final draft appears to be as bad or worse than the original, with a very low threshold of “having a reason to believe” that the right holder will be exposed to “a risk of loss”.
This is going to be a major campaign for ORG and we’ll need to provide amendments to the text.
• Part 5: Digital Government
This is the conclusion of the long process of open policy making on data sharing, where ORG has been involved throughout. There are no big surprises there, and we have summarised the issues and concerns in various blogs and consultation responses. The policy ground work is quite solid but we’ll need help with making concrete proposals for changes on that face of the Bill and mobilising a wider constituency.
Some of the proposals are not too problematic, but when put together they amount to a massive shift in data sharing across government. The safeguards proposals are not too strong and mostly placed ion codes of practice of dubious enforceability. Other proposals are on dodgier grounds. We have raised concerns particularly about the bulk sharing of civil registration data without any apparent purpose limitation and with thin safeguards.
The proposals on to share data of people in debt with government departments are also worrying as they could affect vulnerable people. Despite repeated assurances to the contrary, it is hard not to see this as connected with the new privatisation of debt collection across government with the Debt Market Integrator. It appears that the bill is creating the data sharing powers to enable policies that have not been properly outlined or discussed, putting the cart before the horses.
ORG will be seeking improvements in some areas: tightening purposes, strengthening safeguards and moving these from codes of practice to the face of the bill, and making any reviews proper sunset clauses requiring a Parliamentary reboot, rather than a ministerial nod.
We will also ask for the removal of the disproportionate powers for bulk sharing of civil registration, or at least severe restrictions on their scope.
Relevant ORG materials and blogs on data sharing
• Part 6: Ofcom and Other Regulation
An omnibus within the omnibus, this part contains a ragbag of measures around OFCOM, e.g. appeals process, but also apparently the power for the BBC and public service broadcasters to charge Sky and Virgin for retransmission. This is another area where we need further work picking up any issues.
There are also new powers for the ICO to deal with direct marketing and nuisance calls, which seem ok, but may need improvements.