The UK governments Culture Secretary, Jeremy Hunt (Department for Culture, Olympics, Media and Sport), has ordered the communications regulator ( Ofcom ) to review a key website blocking measure of the controversial anti-piracy Digital Economy Act 2010 (DEA).

The DEA seeks to tackle "illegal" (i.e. unlawful) internet copyright infringement through public File Sharing (P2P) networks by, among other things, imposing "technical measures" upon broadband ISPs (speed restrictions, service disconnection etc.) and issuing warning notices to customers when such activity is detected.

Website blocking was also proposed but appeared to have been removed from the act until it was suddenly re-inserted just prior to the end of parliament and the May 2010 General Election. This left no time for further debate as the act was promptly rushed through in the end of parliament wash-up process.


The Liberal Democrat (LibDem) party was particularly disappointed to see this occur, especially after they had listed "disconnection" and "site blocking" as two key areas of opposition. This concern promptly evaporated after they joined the Conservative Party (Tory) in a new coalition government.


The measure itself certainly has a number of problems. Firstly it doesn't work; ISP's have no control to physically remove or block content that does not exist within their own network. As a result any form of website blocking imposed by an ISP is merely an illusion (placebo) and easily circumvented through any number of simple end-user tweaks (e.g. visiting the websites IP address directly, using a secure connection, VPN, proxy servers etc.).

The National Union of Journalists (NUJ) has also raised strong opposition (here) to the measure because they fear that it doesn't "fully [protect] the freedom of information and expression". The NUJ fears that sites which link incidentally to unlawfully distributed material (e.g. Google) or that inadvertently distribute related content (e.g. social networking) could be impacted and should be exempt.

As a result of this, and the fact that website blocking measures need secondary legislation before they can be introduced, Ofcom has been requested to assess "whether the Act’s reserve powers to enable courts to block websites dedicated to copyright infringement could work".

The terms of reference for the Ofcom assessment are:

◦ Is it possible for access to the site to be blocked by internet service providers?

◦ How robust would such a block be – in other words would it have the intended effect, and how easy would it be to circumvent for most site operators?

◦ What measures might be adopted by internet service providers to prevent such circumvention?

◦ How granular can blocking be – i.e. can specific parts of the site be blocked, how precise can this be, and how effective?

◦ How effective are sections 17 and 18 of the Act in providing for an appropriate method of generating lists of sites to be blocked?

◦ If possible, identify either a potential range of costs for ISP blocking solutions or the main drivers of those costs.

It had been hinted before that 'website blocking' could be reviewed at a later date and luckily the government now appears to be asking all the right questions, although it will be interesting to see how Ofcom answers.



It's noted that this process is separate from the current Judicial Review (JR), which applies to sections 3 to 18 of the DEA. The JR will be heard on 22-24th March 2011 on the ground that the Act was not notified under the Technical Standards Directive, and failed to properly comply with other European legislation relating to eCommerce, data protection and privacy, and is disproportionate.