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Digital Economy Bill amendment raises EU law concerns

Posted by malcolm on Monday, January 30th, 2017 at 10:47

The government has introduced a new amendment to the Digital Economy Bill to bolster the use of Internet filters by ISPs. 

Digital Economy Bill amendment raises EU law concerns

The amendment provides that

A provider of an internet access service to an end-user may prevent or restrict access on the service to information, content, applications or services, for child protection or other purposes, if the action is in accordance with the terms on which the end-user uses the service.

which appears to make it lawful for an ISP to introduce any form of blocking or filtering permitted by their own Terms and Conditions. 

By contrast, in 2015 the EU passed "Regulation 2015/2120 laying down measures concerning open internet access", commonly known as the Network Neutrality Regulation, which provides 

1. End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service. This paragraph is without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services.

2. Agreements between providers of internet access services and end-users on commercial and technical conditions and the characteristics of internet access services such as price, data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the rights of end-users laid down in paragraph 1.

(emphasis added)

While there are certain qualifications to these provisions to allow ISPs to block where required by law, or for reasonable traffic management purposes, there appears to be a direct conflict between the EU principle that the Terms of Service are not sufficient to permit ISPs to block access to content, and this new government amendment to the Digital Economy Bill, which plainly states that they are sufficient.

Major consumer broadband providers have lobbied the government to introduce legislation to protect "family friendly filtering" from legal challenge under the Network Neutrality Regulation. However by establishing it in such stark terms, the government may provoke just such a challenge - if one can be heard before Brexit takes effect.

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