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The controversial Digital Economy Act (DEA) has once again hit the headlines with news that it has been officially delayed until spring 2012 at the earliest. The news will come as no surprise to many within the industry, as the complex Act has been plagued by debate at every stage since its original conception.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

“Since the DEA passed into law there has been a considerable amount of work to do to implement the mass notification system. Secondary legislation setting out how the system will be paid for and how it will work has to be passed by Parliament. Ofcom also has to set up an appeals process” said a spokesman for the Department of Culture, Media and Sport.

The latest delay can be attributed to a number of factors including the ongoing debate over the allocation of costs between rights holders and ISPs (Opinion.enta.net: DEA passes buck to ISPs),  ongoing concerns regarding using IP addresses to ‘identify’ alleged offenders , the latest review of website blocking proposals, the Judicial Review brought by BT and TalkTalk which started this week and of course the problems Ofcom has encountered with its code of practice.

This latest news does not bode well for the future of the DEA. This highly unpopular Act is already facing a barrage of criticism and any further delays simply open it up to more. From the beginning we have continually raised our concerns over many elements of the Act, from the allocation of costs to the identification of offenders by IP address.

We have continually argued that the Act is too heavily weighted in favour of the rights holders and does not adequately consider the needs and impact on ISPs and the public. This view has recently been echoed by Bingchun Meng, an expert from the LSE (London School of Economics) who stated “the DEA has given too much consideration to the interests of copyright holders, while ignoring other stakeholders such as users, ISPs and new players in the creative industry. I hope the Judicial Review will make the government reconsider its approach toward file-sharing.”

So just how much more can the DEA withstand?

So far the DEA has faced severe criticism at every stage, even down to the way in which it passed into law via the pre-election wash-up. Yet despite this ongoing barrage of criticism it appears to hold its ground. However it may be about to face its toughest opposition yet in the Judicial Review brought by BT and TalkTalk. The review will investigate five grounds where the Act may breach existing UK and European laws and directives.

Firstly, the review will discuss whether or not the DEA breaches the Technical Standards Directive which requires the Government to notify the European Commission of the technical objectives being required by ISPs.

Secondly, the review will discuss the liability of ISPs and the effect the DEA has on the E-Commerce Directive which confirms that ISPs are mere conduits of information and cannot be held liable for the data they provide.

Thirdly, the review will assess the impact of the DEA on the Privacy and Electronic Communications Directive.

The fourth ground discusses the European Data Protection Supervisor’s conclusions that the ‘three strikes approach’ is a disproportionate measure for the alleged offence.

Finally, the fifth ground is related to incompatibility with the Authorisation Directive which is a part of EU law that governs the regulation of ISPs.

If the DEA is found to breach any of these existing directives it could be thrown out which would of course be a devastating blow to the Government and Right’s holders and a resounding success for ISPs, privacy advocates and other DEA critics.

We would like to hope that common sense will prevail and that the DEA will be revoked based on at least one of the above grounds however this Act has already proven to be as tough as old boots and its staying power has to be admired. Will the Judicial Review prove too much or will the DEA win its toughest battle yet? All we can do at this stage is wait and see. We will keep you posted!

Have your say!

What do you think about the DEA? Do you think the Judicial Review will prove too much or do you think it will survive yet again? Let us know your thoughts by leaving us a comment below.

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