Digital Economy Act: Site-blocking powers under Ofcom review

Government unsure of technical feasibility of blocking certain sites and services...

The government has asked Ofcom to review the technical feasibility of website-blocking - a component of the Digital Economy Act (DEA) aimed at tackling persistent online copyright infringement.

The review of site-blocking was initiated after members of the public raised concerns about how viable it is, via a government website set up to poll the public for views on which laws and regulations should be amended or removed.

"I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content. But it is not clear whether the site-blocking provisions in the Act could work in practice so I have asked Ofcom to address this question," said Culture Secretary Jeremy Hunt in a statement. "Before we consider introducing site-blocking we need to know whether these measures are possible."

The DEA attracted vigorous opposition when it was rushed through parliament in the dying days of the last government, leaving little time for proper scrutiny.

The Digital Economy Act's site-blocking powers are to be reviewed by Ofcom
Photo: Shutterstock

The Act includes controversial measures to enable the government to force ISPs to disconnect persistent illegal file-sharers' internet connections. Sections 17 and 18 of the Act also introduce site-blocking powers. However critics of the site-blocking proposals suggest the powers could be misused - by targeting sites such as the WikiLeaks whistle-blowing website, for instance.

According to the Department for Culture, Media and Sport (DCMS), Ofcom's assessment of site-blocking will consider issues including the technical feasibility and robustness of site-blocking; whether specific portions of sites could be blocked; how site-blocking could be circumvented; the costs to ISPs of site-blocking; and how lists of blocked sites could be created. A spokesman for the DCMS said the government expects Ofcom's review to last until about Easter. The government will then decide whether or not to proceed with site-blocking, he said.

If the government does decide to proceed, it would need to draw up secondary legislation to enshrine site-blocking in law. Secondary legislation would also be required to enact the DEA's mass notification system for informing persistent file-sharers that their activities have been noted and they are at risk of being disconnected, according to the spokesman.

The spokesman said Ofcom is due to publish its code for notifications "shortly". The code then has to gain EU approval - which he said could take three months. Only then would the government be in a position to draw up legislation for mass notification to put before parliament.

"It isn't a quick process," said the spokesman. "You'd be looking at the start of next year before the first notification letters go out."

"The DEA itself is more like a framework - the three sections that are in it which deal with online copyright infringement all require secondary legislation before they can actually come into effect," he added.

The DEA faces further delays in the form of an ongoing judicial review of sections 3 to 18 of the Act, brought by ISPs BT and TalkTalk, on the grounds that it fails to comply with European commercial law and the Human Rights Acts, and that it is disproportionate.

The judicial review is due to be heard on 22 to 24 March 2011.