Digital Economy Act 2017 Published

May 8, 2017

 The snap election announcement meant that the Digital Economy
Bill, which had reached its final stages, had the dubious benefits of ping-pong
and wash-up (and perhaps some other obscure legislative processes) and, while
we all knew it had received Royal Assent and become the Digital Economy Act
2017 on 25 April, only a handful of people were sure of its final form. Any
doubts about its provisions have now evaporated as it has been published and
can be accessed
(pdf only initially).

The long title of the Act describes it in the following

An Act to make
provision about electronic communications infrastructure and services; to
provide for restricting access to online pornography; to make provision about
protection of intellectual property in connection with electronic
communications; to make provision about data-sharing; to make provision in
connection with section 68 of the Telecommunications Act 1984; to make
provision about functions of OFCOM in relation to the BBC; to provide for
determination by the BBC of age-related TV licence fee concessions; to make
provision about the regulation of direct marketing; to make other provision
about OFCOM and its functions; to make provision about internet filters; to
make provision about preventing or restricting the use of communication devices
in connection with drug dealing offences; to confer power to create an offence
of breaching limits on ticket sales; to make provision about the payment of
charges to the Information Commissioner; to make provision about payment systems
and securities settlement systems; to make provision about qualifications in
information technology; and for connected purposes.

As well as the normal technical provisions (financial
provisions, commencement, extent and short title), s 88 (Functions of OFCOM in
relation to the BBC) came into force on Royal Assent. Most of the Act will be
brought into force by regulations on dates to be determined but the following
provisions come into force on 25 June:

  • ·       
    ss 1 to 3 (access to digital services)
  • ·       
    s 7 (application of the electronic
    communications code in National Parks etc)
  • ·       
    ss 9 to 13 (‘Other regulation of spectrum’ –
    largely amending enforcement powers under the Wireless Telegraphy Act 2006)
  • ·       
    ss 82 and 83 (OFCOM: reports)
  • ·       
    ss 84 to 86 (OFCOM: information)
  • ·       
    s 90 (provision of children’s programmes)
  • ·       
    s 91 (suspension of radio licences for inciting
    crime or disorder)
  • ·       
    s 96 (direct marketing code)
  • ·       
    s 97 (televising events of national interest)
  • ·       
    s 103 (Code of practice for providers of online
    social media platforms)
  • ·       
    s 107 (Prevention or restriction of use of
    communication devices for drug dealing)
  • ·       
    s 113 and sch9 (Band of England oversight of
    payment systems).

Tech lawyers will be especially interested in the final
terms of s 103, which reads:

103 Code of practice
for providers of online social media platforms

(1) The Secretary of State must issue a code of practice
giving guidance to persons who provide online social media platforms for use by
persons in the United Kingdom (“social media providers”).

(2) The guidance to be given is guidance about action it may
be appropriate for providers to take against the use of the platforms they
provide for conduct to which subsection (3) applies.

(3) This subsection applies to conduct which—

(a) is engaged in by a person online,

(b) is directed at an individual, and

(c) involves bullying or insulting the individual, or other
behaviour likely to intimidate or humiliate the individual.

(4) But guidance under this section is not to affect how
unlawful conduct is dealt with.

(5) A code of practice under this section must (subject to
subsection (4)) include guidance to social media providers about the following

(a) maintaining arrangements to enable individuals to notify
providers of the use of their platforms for conduct to which subsection (3)

(b) maintaining processes for dealing with notifications;

(c) including provision on matters within paragraphs (a) and
(b) in terms and conditions for using platforms;

(d) giving information to the public about action providers
take against the use of their platforms for conduct to which subsection (3)

(6) Before issuing a code of practice under this section,
the Secretary of State must consult—

(a) those social media providers to whom the code is
intended to give guidance, and

(b) such other persons as the Secretary of State considers
it appropriate to consult.

(7) The Secretary of State must publish any code of practice
issued under this section.

(8) A code of practice issued under this section may be
revised from time to time by the Secretary of State, and references in this
section to a code of practice include such a revised code.