The Digital Economy Act 2010 and the proportionality of tracking software technologies

Abstract

Through an illustration of a study employing the case law research method, this paper critically assesses the infringement notification process provisions of the recently passed Digital Economy Act 2010 (DEA). Drawing upon, inter alia, the provisions of the DEA, several recent graduated response decisions and some independent expert evidence, this paper attempts to answer the question of whether the data collection techniques utilized by investigatory agents to detect alleged copyright infringement by means of tracking software are legitimate. The question that remains unanswered is whether the employment of these indirect detection systems of alleged illegal action is executed in a way which is compatible with the body of international law designed to protect human rights. Any stance taken towards resolving this complex issue will no doubt have practical implications. Indeed, supposing that the answer to this question is in the negative, new sections 124A and 124B of the Communications Act 2003 as introduced by sections 3 and 4 of the DEA could possibly be inconsistent with European legislation. As a result, its infringement notification process provisions may be deemed, questionable, inappropriate or otherwise unlawful. The paper examines the findings of a graduated response case law research study considering EMI v UPC, Roadshow v iiNet and BT and TalkTalk v Secretary of State. It contrasts such findings with independent expert evidence and in view of the inherent deficiencies regarding the suitability, proportionality and effectiveness of tracking software discusses a number of implications. It suggests that given the lack of procedural safeguards, proportionality and effectiveness inherent in these surveillance techniques, one might conclude that under Article 8 of the European Convention of Human Rights (ECHR) for this software utilization to be legal the ‘‘commercial scale’’ criterion encapsulated in Article 61 of the TRIPS Agreement might be especially helpful.