A frisson of anticipation ripples through Twitter. Now that the Lib Dems are in power, will Nick Clegg repeal the Digital Economy Act?The Act threatens anyone who illegally downloads copyrighted content with being denied access to the web. In addition, blocking injunctions could close down sites that distribute copyrighted content illegally.
There are grounds to hope for repeal. On the face of it, the Digital Economy Act offends at least five varieties of liberal principle.
First, there’s the serious risk of arbitrary enforcement. Second, there’s the civil liberties problem. Next, there’s the mercantilist impulse to shore up threatened industries at the expense of citizens.
Aside from that, there’s the question of proportionality. Suspending web access for persistent offenders is a draconian step: it diminishes free speech and could disenfranchise citizens in a world where e-government becomes the norm.
Finally, there was the ugly Parliamentary stitch-up -- as Nick Clegg described it -- that led to this law’s passage through Parliament in the dying days of Gordon Brown’s government.
The Act, Nick Clegg argued during the election campaign, was a "classic example of what's wrong with Westminster". In mid-April, the Lib Dem leader promised to "take [the Act] off the statute book and replace it with something better".
Activists smell an opportunity. Last week, the Lib-Dem coalition published a list of basic aims, including a Great Repeal Bill or Freedom Bill, designed to roll back some of New Labour’s restrictions of civil liberties.
The Digital Economy Act wasn’t mentioned, but many are hoping that the Act -- or, at least, the clauses that deal with downloading -- will be consigned to the dustbin of Parliamentary history, alongside ID cards, biometric passports and the national identity register.
The hopes of activists received a boost yesterday when Vince Cable, the Liberal Democrat, was sent to run the Department for Business Innovation & Skills.
It was here that the Digital Economy Act originated. The problem for Cable is that crucial decisions about enforcement need to be made soon.
Take the precise arrangements for banishing persistent offenders from the web. The Act asks Ofcom to set out the basis on which copyright owners can send out warning letters.
When these guidelines are ready, broadband subscribers across Britain should start receiving missives. Jim Killock, executive director of the Open Rights Group, expects this to start happening by the end of the year.
At this point, Cable may encounter a surge of complaints from Middle Britain, channeled through the popular press. Killock says: "Suddenly lots of people will be receiving letters saying they are under surveillance. People will be shocked that internet connections are being monitored."
Ofcom has also been given the job of monitoring traffic to see if the warning letters deter illegal downloading.
If downloading doesn’t decline, Cable will be forced to define the legal basis on which disconnections can begin. Against a backdrop of complaints about surveillance and groundless harassment, this won’t be easy.
In parallel, of course, Cable will need to deal with the Act’s declared intention to "block" web sites that "make available" illegal downloads.
Here, too, there’s unfinished business. The Act suggests that Cable may need to decide how copyright holders approach the courts for a blocking injunction. Along the way, Cable could also be forced to amend the Copyright, Designs and Patents Act and other laws.
None of this will be easy. But repealing the offending clauses of the Digital Economy Act won’t be easy, either.
Everyone knows what Nick Clegg appeared to promise. Yet Geoff Taylor, the chief executive of the BPI, the music industry’s trade body, doesn’t sound worried. This week, he told the Billboard that the music industry has "very good support from all main parties".
The Tories, the Lib Dems and Labour, he argued, "understand both the need for the peer-to-peer provisions and the non peer-to-peer [web-blocking] provisions [in the Digital Economy Act]."
At one point during the BBC’s coverage of David Cameron’s arrival at Buckingham Palace on Tuesday, Michael Heseltine reminded us that political parties, in themselves, are coalitions.
Today, the Conservative Party is a coalition within a coalition. For anyone who would like to see the Digital Economy Bill repealed, this isn’t particularly good news.
Already, the Queen’s speech -- due for reading on 25 May -- resembles a Ford Transit carrying the load of an articulated lorry. It will need to stop at many destinations before its drivers even think of popping in for a cup of tea with the pro-repeal activists. Long before then, David Cameron and Nick Clegg may run out of petrol.
Perhaps they already have. At the Department of Culture, Media & Sport, Jeremy Hunt is signalling that the Olympics will be his main focus. Speculation is rampant that the Tories’ drive to restructure the BBC has faltered.
Like those plans for the BBC, the Digital Economy Act is controversial. The Act straddles a faultline between Conservative support for business and liberal support for individual rights.
The prime minister and deputy prime minister appear to disagree. Even as Nick Clegg seemed to demand repeal, David Cameron argued against changing the legislation when asked about it on the campaign trail.
Even if the Lib Dems do argue strenuously for repeal, the Tories will ask themselves the obvious counterfactual question: what will happen if we do nothing?
The possible answers are many and various, but here are a few. Leaving the Act untouched for will cause problems for the most popular Lib Dem in Cabinet. It will please the entertainment industry.
In time, someone else, or something else, may intervene to render the Act unworkable. Candidates for this job include European legislation and the courts here in the UK.
The Conservatives might also ask themselves about whether the Act will harm public perceptions of the coalition. The answer, I suspect, is probably not.
When the music labels start taking grannies from Skegness to court on a weekly basis, it will be easy enough to blame a poorly-drafted law rammed through Parliament by Labour.
There’s another strong argument for letting this controversy run along the trajectory planned by Lord Mandelson.
For the best part of a decade, the online copyright/piracy debate has been the preserve of wonks, geeks and lobbyists. Collectively, this inner circle has reached stalemate again and again.
It’s time for the question to be opened up to a much wider audience. The public needs to start participating in the obscure debates about privacy and intellectual property that are being conducted in its name, without its knowledge.
Injunctions and take-down notices will crystallize opinions. Does public sentiment lean toward the entertainment industry, with its ironclad view of copyright? Or does it incline toward the activists, whose fundamental argument remains that the industry has failed to develop services that people will pay to use?
Opinion polls can only tell us so much. The public doesn’t understand the issues. Politicians don’t understand the public’s mood. A high-profile crisis would force sentiment in one direction or another.
To get some, or all, of the offending clauses of the Digital Economy Act repealed, the Lib Dems will need to fight their corner -- and quickly.
The Tories, by contrast, might decide that they want to leave a bad law on the statute book. The case for repeal is far from open and shut.
Photo Credit:* Flickr CC: Nick-Clegg*
See Also:
