Ofcom to review site-blocking in Digital Economy Act

The regulator will look at measures that require ISPs to block websites found to be unlawfully distributing copyrighted content, to see if they are practical and affordable

The government has asked Ofcom to review proposals in the Digital Economy Act that aim to combat piracy by having ISPs block access to websites used for copyright infringement.

The review will focus on whether such ISP-level blocks are technically viable, and how easy they would be to circumvent, culture secretary Jeremy Hunt said on Tuesday.

Jeremy Hunt culture secretary

Culture secretary Jeremy Hunt has asked Ofcom to review elements of the Digital Economy Act. Photo credit: Conservative Party

"I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content," Hunt said in a statement. "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.

"Before we consider introducing site-blocking, we need to know whether these measures are possible," he added.

As well as cutting off sites that allow people to access unauthorised copyrighted content, the proposals are designed to control online access to live TV and other streamed content not licensed for viewing outside the UK.

As part of its review of the act, Ofcom will assess how specific the controls can practically be. For example, the communications regulator will look at whether ISPs can block certain web pages, rather than a site as a whole. It will also report on the costs involved for ISPs forced to implement the measures.

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.

– Jeremy Hunt, culture secretary

The review will take place immediately and is expected to return a result "around Easter", a spokesman for the Department for Culture Media and Sport told ZDNet UK. Ofcom is currently getting ready to implement other proposals in the act, including requiring ISPs to send letters to people they suspect of unlawfully downloading and sharing copyrighted content.

Peter Bradwell, copyright campaigner for the Open Rights Group (ORG), welcomed the culture secretary's move, which the government said was prompted in part by the recent 'Your Freedom' online opinion-gathering effort.

"It's encouraging to see the government listening to people's genuine concerns about the Digital Economy Act," Bradwell said. "The web-blocking provisions are a real mistake — they would stifle freedom of expression, for unproven benefit, whilst being extremely costly and difficult to manage."

Judicial review

In April, the Digital Economy Act (DEA) became law but quickly faced opposition from rights campaigners and major ISPs such as TalkTalk and BT.  In July, the two companies requested a judicial review of sections three to 18 of the act, saying the legislation had "not received sufficient scrutiny". The judicial review was granted in November and is scheduled to take place in the High Court in March, with an outcome expected by spring.

In addition, the act was described by Baroness Hamwee in the House of Lords as a "prime candidate" for review because it was "only half-discussed before it was passed into law and is full of controversial stuff".

BT responded to the news by underlining the opposition to site-blocking and the practical difficulties of undertaking such measures. "This review demonstrates that ministers recognise site-blocking is a complicated and controversial issue — technically and legally — for copyright infringement or anything else," a spokesperson for the ISP said.

TalkTalk noted that while it had opposed the law from its introduction, it recognised the need to put curbs on unlawful file-sharing.

"Like the rights holders, we agree that illegal file-sharing is wrong and should be tackled, but in a fair and legal way that is proportionate and properly respects consumers' interests," said Andrew Heaney, executive director for strategy and regulation at TalkTalk.

Ofcom is currently in the process of preparing to implement other proposals within the DEA including the notification proposal under which ISPs will be forced to write to users to inform them that they are suspected of illegally downloading and sharing protected content.

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