The Digital Enterprise Act 2017 – The Consumers’ Champion

The Digital Economy Act 2017 will have a significant impact on businesses and individuals, covering a broad spectrum of subjects which range from illegal streaming, access to online pornography sites through to the installation of electronic communications equipment on privately owned land.

It was pushed through Parliament on 27 April 2017 and for such a far reaching piece of legislation, it has received surprisingly little attention, though this is perhaps an inevitability when a law is enacted in the ‘wash up’ period just before the dissolution of Parliament in advance of the General Election.

Rather than just being an enabling act, giving powers for things to be done, the Act actually regulates to require many of its provisions to be met.

For consumers of broadband services (so pretty much all of us) there will be a big improvement. The Act will ensure we are provided with better connectivity and that there is access to broadband throughout the entire country….we can start catching up with Nordic countries at last. This will be achieved by giving every household the legal right to request a fast (10 mbps) broadband connection. Consumers will be further protected by increased Ofcom powers to require the provision of better information about connection services and rights if things go wrong, including automatic compensation.

It gets better. Further protections will be built in to curtail spam emails and nuisance calls. There may be a very small number of people who look forwards to calls from PPI claims farming companies and daily emails about protein shakes but for the rest of us, this is good news. Now, being realistic, many direct marketers will not stop (or even be aware of the Digital Economy Act), however the Government has committed to stronger enforcement of direct marketing laws. The Information Commissioner is required to publish a Code of Conduct for direct marketers.

In a move to toughen safeguards for consumers, new criminal offences have been introduced by the Act for unlawful disclosure of personal data. Many businesses hold consumer data and a significant number fail to meet their obligations. The increased exposure to criminal and civil liabilities for businesses makes it critical that proper and effective systems are put in place.

The Act will be used as a strong weapon against crime; public authorities will have new powers to share information in order to combat public sector fraud. This will however cause concern to consumers as to privacy of their information and of confidentiality. This will allow data to be moved quite freely. Worryingly, the guidance for public authorities is far too open to interpretation and where one Authority considers it ought to share certain data, another may not. If the intention is to have a national database of information, this will have advantages and disadvantages and perhaps ought to be properly debated, rather than introduced in this manner.

Additionally the Act toughens existing laws to combat online copyright infringements by increasing the penalty from two to ten years’ imprisonment, in line with existing penalties for physical copyright infringement.

The Independent reported that people may now face ten year sentences for illegally streaming copyrighted content, noting the increased use of Kodi and streaming sites.

Realistically, individuals will receive a fine at most for using services, those profiting will face stiffer penalties. The Federation Against Copyright Theft (FACT) has noted that powers will be targeted at those individuals and businesses profited from illegal online copyright infringement.

A very important part of the Act is that it makes the most serious move to date to restrict access by children to online pornography.

The Act will make it a requirement for adult sites to verify age. This will be more than simply clicking a box to say the user is over 18, rather sites will be required to verify age, using for example a scan of an identification card. A requirement to use ID such as a passport will no doubt put off many users, whether because they are under age and as such, the Act achieves an important aim or because they do not want a pornography site to have access to their identification. The Ashley Maddison Affair (yes….. intended), has taught us that there are those who can and will access and leak such data; not often but enough to scare.

The Act requires that a person who makes provides online access to pornographic material in the UK may only do so “in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.” The provider of the pornographic content must have robust age verification systems or will not be able to provide content to UK users.

The Act appoints the British Board of Film Classification (BBFC) as the Regulator, including age verification requirements. This makes sense. They have the widest experience in determining what is and is not adult material and have significant regulatory experience.

The BBFC will be given the powers to direct ISPs to prevent access to any site that doesn’t have age verification in place. There is no hard and fast rule on what will be ‘robust age verification’, that will be for the provider to determine. If it does not stand up to scrutiny, then the Act gives powers for the site to be blocked.

Simply, if the operators of the sites will not use safeguards to make sure children can’t access pornography, this new power will block their sites to all consumers.

Overall the Digital Economy Act, whilst not very well drafted, seems to be a genuine response to the concerns of consumers, it has far reaching impact on those businesses who are caught by. Businesses holding data or involved in direct marketing must review their systems in light of the passage of the Act.