Digital Economy Act Q&A: Open Rights Group executive director Jim Killock

The Digital Economy Act (DEA) has been surrounded by controversy ever since it was passed in the dying days of the last Labour government.

The legislation was intended to protect the content of rights holders online, but it has stirred up a furious debate around the issue of web site blocking. ISPs are unhappy because the act puts some of the cost on them to alert users accessing illegal sites . BT and TalkTalk are currently acting as witnesses in a High Court case, arguing that the DEA is not enforceable under EU law.

Communications minister Ed Vaizey has responded to criticism by commissioning a working group, consisting of rights holders and ISPs, to create a more palatable version of the web site blocking plans, dubbed "Plan B".

Jim Killock, executive director of digital rights campaigners the Open Rights Group, has been watching the situation closely and has written several letters to government on the issue.

What are the Open Rights Group's main concerns with the Digital Economy Act?

Jim Killock: We are concerned with IP rights and how the act deals with them and about the consequences of this for the users and their right to access the internet.

The Digital Economy Act could see innocent people targeted for illegal file sharing. There is also a whole wave of unintended consequences, for example cafés and libraries that provide free Wi-Fi might end up being liable to pay fines for illegal file sharing.

This isn't about us saying we want to abolish copyright and have a free-for-all. We are fine with copyright, but it has to fit inside an appropriate framework.

What is the government's position?

A work in progress is the best way to describe the government's approach to the act. Does the top level of leadership in government ultimately care that much? It's hard to say.

With regard to the internet, politicians just want the pipes to be big and fat, but beyond that they don't seem to know how much other issues matter.

The Tories are currently largely in favour of the act. However, it is a Labour bill, so they are not completely wedded to it. If it unravels they will probably just blame Labour.

If the DEA is found to be unenforceable under EU law, which is the main point being made by BT and TalkTalk in the High Court, what will happen?

Well it would simply be unenforceable. The legislation would stay on the statute books but ultimately it would become as dead as a dodo. It would then be up to parliament if it wanted to revise the legislation to make it enforceable.

It is important to remember that the High Court is not the highest court of appeal. The likelihood is that this court will give 'leave to appeal' [meaning it will abstain from making judgment]. The next port of call would be the European court.

I don't know what the result will be, but it seems there is a fair chance this will happen.

What are the ISPs most concerned about? Are BT and TalkTalk simply worried about the additional costs they will have to put up with?

I think their concern is a bit wider than just cost. Their view is that they shouldn't be responsible for content.

They are basically a pipe, and they provide the network. There is a constant pressure as an ISP to be made responsible for all these additional problems. First it is child abuse images, then hate speech, then copy infringement. It seems endless.

There is so much content available on the internet, and if ISPs are forced to take responsibility for it all their business model becomes incredibly complicated.

It's an impossible position for them to be in and they are always going to resist attempts to make them responsible for content on the internet.

They can't be expected to operate on that sort of basis. It's quite unreasonable to expect them to.

A working group has been established to develop a ‘Plan B' – how has this developed? Have you been invited to attend discussions?

My understanding is that this working group was started last autumn. Ed Vaizey and officials sat down with a cross-section of industry and said let's examine how we can manage content online.

But quickly it developed into "how can we block [illegal filesharing] web sites?".

I think what happened is that the group asked the rights holders, how do we get content online? And their response was that we need web blocking. This is always their answer.

We did receive a letter from Ed Vaizey saying that he intended to invite consumer representative groups in the future. We have asked Consumer Focus and Which? whether they have been invited to go along, and they haven't as yet. We haven't had any formal invitation, and Ed didn't mention human rights groups.

So we aren't sure what he meant by this. The group met again this week, and from what we could tell it still comprises just rights holders and ISPs.

What has come out of the working group so far?

There are widespread rumours that the working group proposed ‘Plan B' after talks with the BPI [The British Recorded Music Industry] – the proposal is based on the Internet Watch Foundation model.

I don't think this is a feasible option. The IWF operates as an unofficial national censor, and its operation without due legal process is arguably a serious breach of everyone's rights. But because it deals with child abuse images everyone keeps quiet about it.

The IWF is basically unaccountable. If you get something blocked and you want to object to it, who do you complain to? Is there some way you can get to a court to get this resolved? No: the final decision is made by police, rather than courts.

This model of private censorship has the power to cause immense disruption to other people's freedoms, and there is currently no legal oversight.