The Digital Economy Act 2017 (Commencement No.1) Regulations (the "Regulations") have been made, which bring into force various sections of the Digital Economy Act 2017 (the "Act"). These are in force as of 31 July 2017, and the Regulations also set out certain other sections of the Act which will come into force on 1 October 2017 and 1 October 2018.
The Digital Economy Bill received royal assent on 27 April 2017. The government's aims in introducing the bill were, in particular, to build a better digital infrastructure and provide protections for citizens using digital services.
The Act therefore covers various areas of the digital economy, ranging from communications services and mobile phone contracts, to the lending of e-books, and increased protection around online pornography. This note addresses a few key areas below.
Provisions in force
Section 34 of the Act repeals certain sections of the Copyright Design and Patents Act 1988, which provided the defence that copyright was not infringed where a broadcast was retransmitted by cable. This follows the government previously noting that the defence was outdated, and the ECJ ruling it incompatible with EU law in March 2017.
The Regulations also provide that sections 32 and 33 of the Act will come into force on 1 October 2017. These will, respectively, raise the maximum penalty of imprisonment for online copyright infringement from two to 10 years, and make it possible to give notice of registered design rights by marking products with a website address at which details would be published.
Various provisions relating to Ofcom have been made in Part 6 of the Act. Some of these came into force in June this year, for example section 90, allowing Ofcom to publish criteria to be applied in relation to children's programmes. The provisions now brought into force by the Regulations include the following:
- Section 87 of the Act sets a judicial review standard for appeals to the Competition Appeal Tribunal regarding Ofcom decisions, in a new section 194A of the Communications Act 2003. Previously such appeals were determined "on the merits".
- Section 92 prevents digital additional services from enabling the public to access seriously harmful material.
- Section 93 sets out accessibility requirements for on-demand services.
- Section 100 provides that the proceeds from Ofcom's radio spectrum management activities will no longer be returned to the government, and Ofcom will become fully industry-funded.
Also in relation to radio spectrum management, section 8 of the Act amends the Wireless Telegraphy Act 2006 to introduce regulation for services that provide information about the availability of radio frequencies. This is intended to result in more efficient use of available unused spectrum. In addition, Ofcom is to have regard to the government's statements of strategic priorities in relation to telecoms and radio spectrum management under section 100 of the Act.
Notably, section 104 allows a provider of an internet access service to an end-user to filter access for child protection or other purposes if the action is in accordance with the terms on which the end-user uses the service. As mentioned above, the Act also covers various other aspects of media and telecoms regulation.