The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR

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Abstract

This paper critically assesses the compatibility of s3 Digital Economy Act 2010 (DEA) with Article 8 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Ofcom’s Initial Obligations and two UK cases, namely: British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills,1 and R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others.2 It argues that the implementation of this obligation allows directed surveillance of subscribers’ activities without legal authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA). It also analyses compliance with the Strasbourg Court’s three-part, non-cumulative test, to determine whether s3 of the DEA is, firstly, ‘in accordance with the law’; secondly, pursues one or more legitimate aims contained within Article 8(2) of the Convention; and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that unless the implementation of s3 of the DEA required the involvement of State authorities and was specifically targeted at serious, commercial scale online copyright infringement cases it could infringe part one and part three of the ECtHR’s test, thereby violating subscribers’ Article 8 ECHR rights.
Original languageEnglish
Pages (from-to)229-247
JournalInternational Review of Law, Computers & Technology
Volume30
Issue number3
DOIs
Publication statusPublished - 26 Apr 2016

Keywords

  • Digital Economy Act 2010 (DEA)
  • Privacy
  • Copyright
  • Online piracy
  • Subscriber monitoring
  • Article 8 ECHR
  • MarkMonitor DtecNet
  • Directed surveillance
  • RIPA 2000
  • file-sharing

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