Concerns over the DEA Costs Sharing Order

If the Digital Economy Act were a celebrity, it would probably be phoning for Max Clifford. In March it faces Judicial Review. Ofcom have been asked to review the web blocking provisions. The Culture, Media and Sport Committee are looking at the framework for the protection of IP.

And through James Firth’s ‘Slightly Right of Centre‘ blog, we learned that the European Commission raised plenty of doubts about the ‘Costs Sharing’ order that decides how much of the costs associated with the Digital Economy Act ISPs and rights holders should pay. Today the Merits of Statutory Instruments Committee have advised Parliament of these and other concerns in their 21st Report.

The report raises a number of problems identified with the order. They range from fears that it will price some people out of broadband access, through to concerns for liability faced by libraries and schools. It also features responses from a range of individuals and organisations from DCMS, Consumer Focus, Francis Davey and the Creative Coalition Campaign.

There’s a couple of things to pull out of this immediately. Both help to emphasise that there are real problems running right through this Act.

First is an acknowledgement that the Act will have implications on affordability of broadband. The Government “has acknowledged that there may be an effect on broadband take-up should ISPs pass on the full cost of the process. This is regrettable, but needs to be balanced against the wider benefit to the UK’s digital economy.”

This wider benefit, it is worth recalling, is defined by the Government through figures provided by industry themselves (see the Act’s Impact Assessment), and which are not available for public scrutiny. It’s also worth mentioning that this ‘wider’ benefit actually relates to the narrow revenue interests of those bodies supplying these numbers.

It doesn’t seem immediately acceptable to balance the costs to ISPs and their poorest customers ability to access the Internet against this kind of flawed and narrow evidence. We need full details of the analysis behind these figures.

Second is the response of the Creative Coalition Campaign. They are concerned about mass, vexatious appeals. Yesterday Judge Birss strongly criticised the law firm ACS:Law for their horrid blanket-bomb invoicing tactics. That has seen tens of thousands of people, many of them entirely innocent, receiving demands for money that ‘materially overstate’ the proof available.

So it is hard to see the logic of demanding greater barriers to appeal. Especially so soon after concrete evidence that the people most likely to abuse the court processes available to rights holders are rights holders, not their accused. Due process is not a gift. It seems obvious that ‘masses’ of people would, following the concerns of Judge Birss, have legitimate, not vexatious, reason to appeal.

There are plenty of forums to express your thoughts on these issues. In particular it might be worth looking at the Culture, Media and Sport inquiry. If you’d like to talk to us about that, or the issue more broadly, get in touch. Or if you are considering responding yourself, you can find details of how here. 

(James Firth has another excellent blog up on this here.