Britain’s Digital Economy Bill Has Huge Implications for Freedom of Expression

Britain’s Digital Economy Bill Has Huge Implications for Freedom of Expression

Michael Harris: The Scary Implications of Britain’s Digital Economy Bill

Content creators haven?t had it easy in the last few years. The almost endless expansion of the Internet?s capacity to move content–first copyrighted text, then images, audio, and video–has fundamentally undermined the pay model of those who produce content. So the lobbying for draconian measures to protect traditional notions of copyright in Britain?s Digital Economy Act has been intense.

Lobbyists told politicians that:

British musicians, singers, actors, writers and directors are known and loved around the world and create some of our greatest assets. Together they contribute more that 7 percent to the UK economy.

The Digital Economy Bill brings both of these together. It will ensure that British creators, entertainment companies and the 1.8 million people who work in and around the cultural sector are respected and rewarded in the future as they have been in the past, and that they are fairly paid when they put their work online.

The lobbyists won. The Digital Economy Bill that was rushed through Parliament contained controversial clauses that potentially allowed “a three strikes and you?re out” rule that would block access to the Internet for users who are alleged by content creators to have downloaded or shared copyrighted material.

Although the specific clause that allowed for disconnecting a user’s access to the Internet did not pass (though the government intends to bring this back to Parliament after the election on May 6), the UK’s communications regulator (known as Ofcom) will still be able to order Internet service providers (ISPs) to sanction speed blocks, bandwidth shaping, site blocking, account suspension, and other limits against an ISP customer accused of downloading copyrighted material.

While content creators have every right to defend their material, the provisions in the Digital Britain Bill are arguably an extremely authoritarian way of going about this. The Courts will not decide whether an individual should be barred from having an Internet connection–but a tribunal panel at Ofcom. And if individuals appeal, they will shoulder one third of the costs of such an appeal without recourse to legal aid. As a result, it will only be a matter of time before national newspapers will carry stories of poor disabled people on council estates facing disconnection from the outside world–and with no money to appeal such a decision.

If you think this only affects Internet users in Britain, think again. As with so much illiberal legislation, once mandated in one country, it begins to creep abroad. As Ian Brown, of the Oxford Internet Institute writes in the latest edition of the Index on Censorship magazine: ?The European Commission has been secretly negotiating a new anti-counterfeiting treaty with the US, Japan and other developed nations that would mandate a three strikes policy.?

THE DIGITAL Economy Bill also contains clauses that allows a secretary of state, by order, to apply technical measures (as described above) against any user for any reason–for example, a political or religious Web site considered extreme by the government of the day.

In 2008, the former Home Secretary Jacqui Smith told BBC Radio 4:

We need to work with internet service providers, we need to actually use some of the lessons we?ve learned, for example about how to protect children from paedophiles and grooming on the internet to inform the way in which we use it to prevent violent extremisms and to tackle terrorism as well.

In the event of another homegrown terrorist attack on UK soil, amending the Digital Economy Act to give a secretary of state the power to ban any website he or she chooses would be entirely possible under existing clauses of the act. At most it would require a ?statutory instrument,? a type of mini-bill, that doesn?t need to be voted through Parliament but instead is voted through “on the nod” by a small Committee of MPs (this is how government Whips almost always get their way by convention).

The Digital Economy Bill passed through Parliament with almost no debate. Tom Watson MP, a close ally of the Prime Minister Gordon Brown, was moved to rebel against his party. With legislation now at European level and the possibility of this legislation creeping abroad, what happens next? Ian Brown suggests it?s not over yet:

The House of Commons may have rushed through the Digital Economy Act with minimal scrutiny, but I think public protest over its far-ranging provisions is just warming up. Most of the UK?s 50m Internet users are only just hearing about this threat to their ability to work, learn and express themselves online.

The Internet?s democratic potential will be damaged by powers in the Act for users to be disconnected and websites to be blocked. But in the meantime, the tens of thousands of citizens who complained about the lack of debate to their MPs will be thinking about next month?s general election. Voters have an ideal opportunity to favour candidates that support freedom of expression and promise to block the secondary legislation that is still needed in the next Parliament to bring many of the Act?s provisions into force.