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The Joint Committee on Human Rights has released their analysis of the Digital Economy BIll, which has a pretty damning conclusion: we have the right to a free trial. We must be presumed innocent. And the EU's 'internet freedom' matters.

Read it, get angry, and take action!

Copyright infringement reports

The Bill establishes a mechanism whereby holders of copyright will be able to issue a ‘copyright infringement report’ to an ISP where it appears that the ISP’s service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account. The ISPs will also be required to maintain a list of account holders who have been the subject of such reports.

We consider that it is unlikely that these proposals alone will lead to a significant risk of a breach of individual internet users’ right to respect for privacy, their right to freedom of expression or their right to respect for their property rights (Articles 8, 10, Article 1, Protocol 1 ECHR). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.

Technical measures

The Bill provides for the Secretary of State to have the power to require ISPs to take “technical measures” in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.

We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention.

Right to a fair hearing

The Bill provides for provisions for appeals in codes. There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.

Without a clear picture of the criteria for the imposition of technical measures it is difficult to reach a final conclusion on the fairness of the process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.

Legislative Scrutiny: Digital Economy Bill 34 Optional header

Reserve powers

Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a ‘super-affirmative’ procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.

Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns.

Copyright infringement reports

The Bill establishes a mechanism whereby holders of copyright will be able to issue a ‘copyright infringement report’ to an ISP where it appears that the ISP’s service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account. The ISPs will also be required to maintain a list of account holders who have been the subject of such reports.

We consider that it is unlikely that these proposals alone will lead to a significant risk of a breach of individual internet users’ right to respect for privacy, their right to freedom of expression or their right to respect for their property rights (Articles 8, 10, Article 1, Protocol 1 ECHR). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.

Technical measures

The Bill provides for the Secretary of State to have the power to require ISPs to take “technical measures” in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.

We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention.

Right to a fair hearing

The Bill provides for provisions for appeals in codes. There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.

Without a clear picture of the criteria for the imposition of technical measures it is difficult to reach a final conclusion on the fairness of the process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.

Reserve powers

Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a ‘super-affirmative’ procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.

Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns.

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Mark Thomas presents a ten minute slot on the Digital Economy BIll's proposals to disconnect anyone whose account is used for copyright infringement. Cory Doctorow and myself (Jim Killock) spoke to Mark Thomas giving some of ORG's views on why disconnection is wrong, and won't help the music industry.

Watch on iPlayer

if this makes you as angry as the many viewers on Twitter, don't forget to take action and join ORG.

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Universities, libraries and schools are calling for changes to guarantee they are not cut off or fined because of their students and users:

"Because public institutions often provide internet access to hundreds or thousands of individual users, the complexity of our position in relation to copyright infringements must be taken into consideration. If this is not done, a public institution such as a library, school or university’s internet connection as a whole could be jeopardised, resulting in loss of internet access to large sections of the public, particularly the 15 million citizens without an internet connection at home.

"Our institutions already take rigorous practical measures to ensure that copyright infringement is minimised.

"These measures are highly effective and have been recognised as such by major rights holders. The Bill risks imposing significant financial and administrative burdens on institutions relating to compliance, reporting and dealing with complaints – all of which may not have the desired effect of identifying persistently infringing individuals."

The situation is exactly parallel for cafés, bars and hotels, as well as community centres: if you are involved in any of these you should make your views known to the front bench teams now. That’s Stephen Timms (at BIS, Lab) Don Foster (DCMS, LD) and Jeremy Hunt (BIS, Con).

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Siôn Simon, the junior minister who would have been piloting the Digital Economy Bill through the Commons, has left his job in order to run for Mayor of Birmingham.

A number of news outlets suggested today that this would spell danger for the Bill, which will have to be pushed through the Commons at breakneck speed.

In fact, the greatest danger is that whoever picks up the task will have an uncertain grasp of the problems in the legislation.

For instance, while libraries and universities have understood what the Bill really means for them, and are pushing to make sure they do not find themselves liable for the copyright infringements of students, this problem is only now starting to be understood by the rest of industry.

Last year, the Federation of Small Businesses raised this concern with ministers, and we are hearing that some major food café chains and hoteliers are raising questions, the overall costs to industry just haven’t been considered by the government.

But these costs were absent from the consultation and the impact assessment that BIS made.

Whoever replaces Siôn Simon is going to have to get their head around these problems, and make sure that innocent people and businesses are not punished, or we’re going to find Labour passing a very damaging piece of legislation.

Meanwhile, if you run a business or community centre with open wifi, and could find yourself forced to withdraw that service, damaging your business and the interests of tour customers, please write to the Labour, Liberal and Conservative front bench teams. That’s Stephen Timms (at BIS, Lab) Don Foster (DCMS, LD) and Jeremy Hunt (BIS, Con).

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We just wanted to give everyone who came to our workshops, and who will be writing or talking to their MPs about the Bill. 

We had some pretty useful discussions, highlighting the need to be concise, talk from personal experience, and be clear about what you want your MP to do. We also found that for most of us, copyright infringement is not the issue – due process and safeguarding our rights is.

We'll be putting up some video based on the events, hopefully next week.

Last week, the debates in the Lords revealed that people who are innocent, but wish to prove it, will have to pay in order to access justice. We also know they will not be eligible for legal aid, and that innocence may not even be a defence. If someone else used your internet account to infringe copyright, tribunals will be instructed that you are responsible.

This puts many businesses and educational institutions in an impossible position. They will be liable for the activities of their customers and students. The Federation of Small Businesses, libraries and JANET have asked the government what they will be doing about this. The government’s answer, so far, seems to be that they can block infringers, so they can simply accept the liability and hope for the best.

The only answer for many will be shut down their open wifi networks, depriving many people of easy access to the net on the move, or in social centres, or during their education.

This is an unacceptable burden to put on the economy. It is disproportionate to the right of copyright holders to reduce infringement. The social and economic costs have not yet been calculated, and were not even part of BIS’ initial assessment.

The Bill, as it stands, risks bringing the law into disrepute, as it undermines the rights of the innocent and would place extraordinary burdens on everyday businesses. We hope people like you will, over the next few weeks, highlight these problems to individual MPs.

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At the most recent meeting of our board of directors, on 14 January, David Harris announced his intention to step down from his responsibilities with Open Rights.

The Board accepted David's resignation and would like to express their sincere thanks for contributing his time and efforts in the last two and half years. They would also like to note that David has been particularly useful for his legal expertise and campaign background.

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