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Criticism of the DEA (Digital Economy Act) appears to be limitless and has now stretched as far as the United Nations. The UNHRC (United Nations Human Rights Council) has released a statement that condemns policies such as our ‘beloved’ DEA which, it says, seek to disconnect people from the Internet, branding them as ‘disproportionate’ and a ‘violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.’

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

Frank La Rue, the UNHRC’s Special Rapporteur said: “The Special Rapporteur is deeply concerned by discussions regarding a centralized ‘on/off’ control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France and the Digital Economy Act 2010 of the United Kingdom.

While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.”

So it looks like the UNHRC are the latest in a long line to criticise the unpopular DEA but will a condemnation from such an influential and highly regarded organisation as the UN force the Government to finally think again on this highly controversial legislation? We’re not holding our breath. Let’s face it – the DEA has withstood everything else that has been thrown at it since its early conception by Mandelson et al.

This latest criticism follows hot on the heels of news that BT and TalkTalk plan to appeal the decision of the judicial review they brought against the DEA. As reported in our recent article, The DEA – seems common sense isn’t common (Entanet Opinion: The DEA – seems common sense isn’t common), they lost four out of five of the grounds of the judicial review and now plan to appeal these and prove that the DEA is not “broadly compatible with EU law”.

The only potential glimmer of hope in this ongoing battle comes from Professor Ian Hargreaves who recently advised the Government within his review of the UK’s Intellectual Property (IP) laws that they should base their IP policy more on economic evidence and pay more attention to the impact on consumers and non-rights holders – finally someone is talking some sense.

But as we applaud Professor Hargreaves for his understanding we also learn that the EU is reviewing its own IP strategy with the release of their Intellectual Property Rights Strategy (IPRS). This policy requests ‘cooperation’ from ISPs in the fight against online copyright infringements, without yet stating exactly what ‘cooperation’ will be required. The concern is that ISPs will yet again be expected to police the Internet. The strategy states: “The Commission will identify ways to create a framework allowing, in particular, combating infringements of IPR via the internet more effectively. Any amendments should have as their objective tackling the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers, while being compatible with the goals of broadband policies and without prejudicing the interests of end consumers.”

As we have stated many times before it is important to remember that ISPs are conduits of information and do not have the powers to ‘police’ the Internet. We expect this ‘cooperation’ to require ISPs to use website blocking and filtering software to block access to file sharing websites. However as we have previously explained this will not solve the problem. Those intent on using these websites will easily be able to circumvent the blocks and this, coupled with the DEA, will simply identify (based on the controversial use of IP addresses) and punish those using the sites not the real villains behind the websites. As we have seen in the news in the past, such filtering software can also yield unexpected results such as blocking innocent sites like Wikipedia and news sites. If such ‘cooperation’ is required from ISPs then we need to be confident in the accuracy of the software to avoid such situations and protect freedom of speech.

At the risk of repeating ourselves once again, the DEA is fundamentally flawed and is in desperate need of review. Additionally the speculated EU IPRS call for ‘cooperation’ from ISPs also needs careful consideration. If the Government and the EU continue to ignore the industry most affected and knowledgeable on this subject then they are undoubtedly heading for a disaster. Maybe the UN can bring them to their senses, but we won’t hold our breath. We fear the DEA is an indestructible nemesis.

Updated: 17th June 2011

It looks like the Liberal Democrat MP for Cambridge, Julian Huppert, agrees with us and the UKHRC on this issue as he has tabled an EDM (Early Day Motion) to demand a repeal of the DEA. In the EDM Huppert uses the recent announcement from the UNHRC as supporting evidence stating:

“That this House welcomes the report of the Special Rapporteur on Free Expression, Frank de la Rue, to the Human Rights Council of United Nations; notes that he is `alarmed’ by the Digital Economy Act 2010 and other three strikes disconnection laws and that he considers them to be a violation of freedom of expression; further notes the report’s recommendation to repeal laws permitting disconnection of users from the internet; further notes that La Rue emphasises that web censorship should never be delegated to private entities, and that corporations should only act to block and censor with the authority of a judicial process; and calls on appropriate Parliamentary Select Committees and the Government to re-examine new website blocking proposals from the Department for Culture, Media and Sport, as part of the Home Office’s Prevent strategy, and in sections 3 to 18 of the Digital Economy Act 2011 in the light of this report.”

Unfortunately whilst EDMs are used to bring an issue into debate in the House of Commons, very few are actually debated. Instead most are used as a way of publicising an MPs views on a particular issue. So whilst we don’t hold out much hope for yet another request for repeal, we can only hope that this continued criticism will add to any niggling doubts  the Government may already have about their controversial DEA.

Updated: 22nd June 2011

BT and TalkTalk’s appeal against the DEA has been rejected. However the companies have hinted that they may take this further with plans to appeal to the European courts. Hopefully they will have more luck there as the basis of their appeal was due to a lack of compatibility with EU law.

Have your say!

What do you think about the latest DEA criticisms? Do you think the Government will finally listen to the ongoing backlash or do you think the DEA really is indestructible and will survive intact yet again? Let us know your thoughts by leaving us a comment below.

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