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.

Full text

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.

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).

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).

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.

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.

A very quick note to say that Ofcom have launched their new consultation, here (PDF).

The BBC have made a very determined but on the face of it misleading examination of the alternatives, admitting some risk to pricing as a result of their plans to encrypt the programming information, and vastly exaggerating the problems with getting the programs from producers without this measure.

We will of course be looking at this in detail - any comments you have, please let us know here, or via email.

Many of you will have been following ORG’s updates on Twitter through the Digital Economy debates; we’ve been attending the debates, as well as working hard to make sure as many of you as possible are able to respond yourself.

Behind the scenes, ORG has helped Lords with advice on the Bill’s weaknesses, and has been very pleased to see many of our concerns being debated on the floor of the House as a result of our and others’ efforts.

Lords Whitty, Errol, Lucas, Razzal and Clement Jones have made very serious points, often supported by Howard of Rising and De Maulay for the Conservative front bench.

For instance, the nature of the tribunals, the likely routes of appeal, the defences available to those accused; all of these remain unclear and not placed in Bill. The simple identification of an account holder, on whose network infringement has taken place, and an actual infringer, has been shown to be weak and problematic.

The Lords have made it clear that this is likely to unwarranted liabilities for educational institutions and wifi network operators. The Federation of Small Businesses has made the same point to the Lords as well.

Meanwhile, the government front bench has attempted to deflect many of the points being made, often by stating that the problems they identify will be dealt with in future Statutory Instruments.

This is not an acceptable approach. This abdicates democratic scrutiny and places wide powers in the hands of future executives.

The issue of costs, for instance, is to be placed in the SIs. Yet it is clear that there is every reason to worry that innocent ISP customers may end up paying large sums for these enforcement measures.

The Lords also raised the fundamental issue that there is no obligation to ensure that wider access to copyright works is created, and that the online market in rights is functioning. Yet this is the supposed aim of the legislation. ORG among others has shown repeatedly that this market is dysfunctional and exhibits signs of abuse by rights holders. The Lords from the Liberal and Conservative front benches asked that these questions be looked at – a move that ORG would welcome.

The critical moment for the Lords is in the run up to the Report stage. ORG will be working to help the Lords in whatever way we can to resolve some of these key issues as best as possible.

In the meantime, here’s looking forward to meeting those of you who are joining us over the weekend for our training days!

The Open Rights Group wants to help you get your voice heard: by helping you to talk to your MP. Booking an appointment with your MP and saying what you think is easier than you might think.

At this event you will:

• Gain the confidence to talk and write to your MP
• Rehearse talking to your MP one on one
• Find out what MPs will ask you
• Learn how to write to your MP and get a response
• Meet other people campaigning against disconnection without trial in the Digital Economy Bill

Talking to your MP is the most effective way to make sure Parliament knows how unpopular and bad disconnection without trial really would be.

In these short sessions, you can try out talking to your ‘MP’ or watch someone else having a go, and learn how to get your points across in a way that an MP will understand.

To book, please use these forms:

Manchester Saturday 23 Jan

2pm Madlab, 36-40 Edge St, M4 1HN

More info on the eventbrite page.

Edinburgh Sunday 24 Jan

2pm Arts Complex St Margaret's House 151 London Road, EH7 6AE

More info on the eventbrite page.

London Saturday 30 Jan

2pm ORG Towers, 7th floor 100 Grays Inn Road, WC1X 8AL

More info on the eventbrite page.

Sheffield, Wed 27 Jan

Unconference at 2pm followed by training sessions at 5pm and 7pm (you can attend just the training)

More info on the eventbrite page.

The line by line Committee debate on the Digital Economy Bill starts today, and is likely to last through January, according to the current Parliamentary business papers.
This is a good thing: with so many poorly thought out ideas, a long debate is needed. The lack of due process and safeguards in the current Bill has a chance of being understood in a longer debate, as well as the consequences of introducing Nescafe-style copyright law for businesses who need certainty in order to innovate.

But it also gives you a chance to make your views heard. Please write to your MP if you haven’t already; and if you’ve done that, write to a Lord as well.

And let us know how it goes!

 A number of times talking about the Digital Economy Bill, we have found MPs have been briefed by others to expect us to defend ‘freeloading’ copyright infringement.

But we don’t. As far as this Bill is concerned, copyright infringement is barely relevant.

The fact is that our concerns with this Bill have nothing to do with civil copyright infringement: except that attempts to deal with infringement are threatening to  erode our basic rights.

In the potential scheme to apply internet disconnections or restrictions, people will be punished without a guarantee of a prior hearing, and punishments may be imposed without regard to their consequence.

The government front bench says copyright infringement is theft and that only the worst offenders will be punished.

People stealing CDs are taken to court. If domestic copyright infringers are thieves, they should be taken to court.

They should make sure the right person is punished, and punished appropriately.

Why is it so difficult to give these people a proper hearing? And why is it not possible to use a more proportionate punishment like a small fine, based like all fines, on the scale of the offence and their ability to pay?

We sympathise with MPs and Lords who are concerned that artists get paid, and can get a fair return for their work. Copyright has a part to play in that, but copyright should never be placed above more basic civil rights.

The Bill contains other very threatening proposals. Clause 11, as both lawyer Francis Davey and Liberty detail, contains a general power to restrict or censor any content on the internet for any reason at all. This is being done in the name of powers to prevent copyright infringement – but the wording allows any use at all.

We hope Lords oppose this clause in its current form.

Clause 17 has been given the widest attention, as it grants powers to impose new duties of copyright enforcement on new services, undermining the stability of copyright, and making the case for investment in innovation much worse in the UK.

We should be astounded if a Digital Economy Bill is used to undermine its basic functioning.

Finally, the privacy threats of Data Retention are coming home to roost. Data collected for the narrow purpose of dealing with serious crime such as terrorism will now be used to aid copyright enforcement agencies. Databases of accusations about copyright infringement will be built – with no guarantee of access to this information by those who are accused.

These issues, again, need serious debate in order that law enforcement is proportionate and fair.

When you talk or write to an MP or Lord: make sure that they understand that copyright enforcement has nothing to do with the problems in this Bill. The industry and government have a right to make copyright work – but not at the expense of our basic civil liberties.

Bruce Schneier did a benefit gig for Open Rights Group last Friday and here's the video of his 'Future of Privacy' talk and the 45-minute Q&A.

We've also got four copies of his excellent Schneier on Security book to give away. The first four folks who join ORG and send their confirmation email on to Turn on JavaScript! with 'Brucey bonus' in the subject line will be the lucky winners.

Open Rights Group: Bruce Schneier Security Talk from Open Rights Group on Vimeo.

Open Rights Group: Bruce Schneier Security Talk (Q&A) from Open Rights Group on Vimeo.

We've also got Ogg versions online if you'd prefer over on Blip.tv. Thanks to Mikko for doing such a fine job on the videos.

An update following on from the Greater London Assembly's decision to charge ahead with e-counting regardless of the cost or criticism from the Electoral Commission. Conservative London Assembly member Andrew Boff submitted a question to Mayor Boris Johnson which ORG considered helpful in potentially revealing how strongly the GLA's political leadership believed in spending at least £1.5 million extra for the risk and complexity of e-counting. Sadly the response was a complete dodge:

Elections
Question No: 3574 / 2009
Andrew Boff

For the 2012 elections would the Mayor prefer a £5million+ electronic count where the bulk of the costs would go to a foreign computer company or a £3.5million manual count where the bulk of the costs would go into Londoner’s pockets?

Answer from the Mayor:

The Authority’s Scheme of Delegation quite properly gives the Chief Executive, in his role as the Greater London Returning Officer, the right to take all the decisions about how GLA elections are delivered. That accords entirely with the practice across the country that politicians contest elections, and do not decide how they should be run. (Source)

The answer avoids the fact that the Mayor and Assembly have budget setting powers, or that electoral modernisation in the UK has been very obviously driven by politicians thus far. Boris either doesn’t care, doesn’t understand or doesn’t want to take on his Chief Executive. The question now becomes, how do we hold the Greater London Authority’s Chief Executive to account about election arrangements if the directly elected Mayor won’t?

Several ORG supporters and staff sat in the public gallery of the Lords to watch Wednesday's Digital Economy's second reading debate, and many more of you watched proceedings online, and, as the Lords might have it, provided a publicly accessible commentary on the Twitter service.

There was a varying quality of contributions. Many individuals seemed to be there at the behest of vested interests and lobby organizations. There were some sane voices, mostly people whose background is in technology and consumer rights. Baroness Miller, Lord Lucas and Lord Maxton all spoke up for citizens and their rights, and for balance.

Lord Lucas reminded Lords:

We are not talking about the small, creative individual here, but about powerful, monopolistic industries and giving them power over citizens. We must be careful of that. A principal example is that of the pornography industry, which I have seen mentioned in one briefing but has not been spoken of in any of the speeches today.Pornography is widely used on the internet and is one of the most assiduous industries when it comes to pursuing people for supposed non-payment for illegal downloads et cetera. We have to face it that we will be putting a lot of people into the hands of pornographers and their lawyers if we are not careful about the way we draft the Bill.

The recording industry is another major beneficiary of what is being done here. That industry is not exactly known for its kindness to creative people. Many people have created pieces of music and sold them to rapacious recording companies for a couple of hundred quid, only to see those companies go on to make vast sums out of them. The relationship is not equal and, as I have said, we are not dealing here with the benefit to the creative individual, but with the benefit to a powerful and monopolistic industry.

Pornography is widely used on the internet and is one of the most assiduous industries when it comes to pursuing people for supposed non-payment for illegal downloads et cetera. We have to face it that we will be putting a lot of people into the hands of pornographers and their lawyers if we are not careful about the way we draft the Bill.

The recording industry is another major beneficiary of what is being done here. That industry is not exactly known for its kindness to creative people. Many people have created pieces of music and sold them to rapacious recording companies for a couple of hundred quid, only to see those companies go on to make vast sums out of them. The relationship is not equal and, as I have said, we are not dealing here with the benefit to the creative individual, but with the benefit to a powerful and monopolistic industry.

 

Lord Maxton added that:

There are dangers in what the Government are proposing. Most of the Bill is very good and takes the digital economy forward, but I have concerns about the idea of cutting off broadband access. If I am right, broadband will become as important to our households as our gas, electricity and water supplies. We have come a long way in trying to stop the utility companies from actually cutting people off if they do not pay, and we have to adopt the same attitude towards broadband access.

While Baroness Miller put changes in technology and copyright into historical perspective:

This debate takes me back to my own dissertation, at the end of my college course some 35 years ago, on the problem for the book industry posed by copyright piracy in the developing world. The invention of the photocopier and the lack of copyright law enforcement in the developing world would, it was said, lead to the worldwide collapse of the publishing industry. Centuries earlier, the scribes who transcribed books in longhand had similar feelings about Caxton when he invented the printing press. They worried that it would put them out of business. In fact, a whole renaissance of art and learning blossomed with the wider spread of the book. Throughout the ages, the old style of creativity has fought tooth and nail against change.

That is why the Government are making a mistake in this Bill. While understanding the wish of industry for protection from the tides of change, the Government have, in Clauses 4 to 17, laid the emphasis too much on stemming that tide and not enough in channelling it into the new business models. 

The case for substantial change was summed up by Lord Whitty, who is Chair of Consumer focus, and a former Labour Party General Secretary:

My Lords, I am deeply grateful that the noble Baroness, Lady Miller, has spoken in the way that she has. Until that point, I thought that this was becoming a dangerously unbalanced debate, with the notable exception of the noble Lord, Lord Lucas, and, to some extent, my noble friend Lord Maxton. 

[…]

I do so in part in relation to my role with Consumer Focus. But I do also-this is why I am slightly surprised at the balance of the debate-simply as a Member of the House of Lords. Normally, your Lordships' House is deeply diligent about issues of human rights, privacy, due process, the rule of law and the need to provide proof in cases of criminality and the equivalent. 

[…]

There have been many references, including that of the right reverend Prelate, to this being the equivalent of theft. It certainly falls under the context of the commandment, "Thou shalt not steal". I am told by the noble Lord's officials, and I made the analogy myself, that technically it is not theft because, at present, it is enforceable through the civil courts and not the criminal courts. But even if we accept that it is theft, the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage and then as a result of strong counterlobbying by among others my own organisation

[…]

You are not simply penalising the individual who breaches the copyright but a whole range of other people whose livelihoods may well depend on access and unthrottled access to the internet. I am profoundly concerned about provisions in Clauses 4 to 17. I accept very much that the Government have moved from the position which was originally being urged on them, principally by the industry. I am prepared to accept that the first stage of the process that they outlined, which places the duty on Ofcom to look at how we can develop more legal ways of provision, is sensible but that is the provision that ought to be the main part of resolving this problem, not the sanctions. I still have profound objections to the sanctions as they stand in stage two of the process.

[…]

I hope that we can look at some of these issues in Committee. We may be able to move the Government further towards emphasis on developing alternative business models and the introduction of a fair use provision in copyright law that would enable most users to escape from being criminalised and ensure that where sanctions still apply they are in line with the principles of law and of protection of the citizen which are normally central to the concerns of this House and rightly so.

But  the balance of the debate was very different. We have a lot to do. If you can help lobbying your MP or writing to the Lords, please Turn on JavaScript!.

Francis Davey has prepared for us a legal analysis of the copyright infringement provisions of the Digital Economy Bill, summarising its problems as follows

• the key question of who will be disconnected from the internet and for what reason is subject to no democratic control and requires no consultation to be made;

• although the codes must be objectively justifiable, non-discriminatory, proportionate and transparent this most important question will be decided by order of the Secretary of State who is not required to be adhere to any principles of proportionality etc;

• some decisions (such as whether there has been a copyright infringement) that affect individuals will not be subject to appeal; those that are may not have an adequate route of appeal;

• many of the important details are left to codes of practice which will not be subject to sufficient parliamentary scrutiny - in some cases there need be no scrutiny at all;

• the Bill has an inflexible and stereotyped view of the way in which access to the internet is provided which ignores many useful and important business models: many business from Weatherspoons and Macondalds to the British Library and local community access projects will be affected and may have to cease to provide internet access.

Click through to read the briefing in full.

Liberty are condemning the Digital Economy Bill’s file sharing measures on human rights grounds, saying it “runs wholly counter to a human rights compliant approach”. While, like ORG, they believe copyright should be respected, they point out that the measures proposed cannot be applied easily without innocent people being affected, and point out that disconnection is intrusive and disproportionate. They also think that powers as drafted could lead to the Secretary of State being able to restrict access to the web on a wide range of non-copyright grounds, leading to much wider freedom of speech concerns. Here are the key paragraphs. You can read their full briefing here (PDF 87kb).

13. In creating such an order-making power the Government is proposing that in dealing with suspected copyright infringement (or indeed as we outline below in dealing with any particular type of internet use) ordinary criminal or civil procedures will be bypassed replaced instead with an administrative process laden with executive involvement and devoid in the first instance of due process safeguards. This proposal continues two disturbing trends enthusiastically adopted by this Government over recent years. The first is the attempt to sidestep traditional criminal or civil law standards and procedures in favour of administrative systems controlled by the executive which undermine rights and erode procedural fairness. At its very worst this corrosive model has allowed for indefinite house arrest for those suspected of involvement in terrorism under the control order regime. The second trend is the penchant for leaving that which should properly be dealt with on the face of primary legislation to secondary legislation in the form of regulations or Orders which do not attract sufficient levels of parliamentary scrutiny.

14. The sanction proposed under model 2 is severe. The explanatory notes state that orders by the Secretary of State under clause 11 “would require ISPs to take measures to limit internet access to certain subscribers” and “would be likely to include bandwith capping or shaping that would make it difficult for subscribers to continue file-sharing but other measures may also be considered. If appropriate temporary suspension of broadband connections could be considered”. These technical measures implemented at the Secretary of State’s behest may therefore include disconnection.

 

15. Article 10 of the HRA, the right to freedom of expression, includes within its definition the freedom to receive and impart information and ideas. This right is, of course, not absolute and can be limited to an extent shown to be necessary and proportionate in achieving a legitimate aim, for example protecting the rights of others. While the Government’s professed aim of protecting copyright is indeed legitimate, it is doubtful that this second model is a proportionate means of achieving that aim. Proportionality demands that in pursuing policies that interfere with rights, the least intrusive method of securing a policy objective is used. The automatic sanction of disconnection and other potential technical measures are by their very nature highly intrusive. The level of interference with the right to receive and impart information and ideas is made only more acute by the fact that we are in an age where people increasingly rely on the internet to allow them to gain access to information and provide information to others. That this Bill seeks to create two possible models for addressing copyright infringement – one that includes an automatic sanction and one which provides a mechanism to allow copyright owners to pursue suspected infringers in the court room - serves only to highlight the disproportionate nature of this second model.

16. What’s more, automatic disconnection is likely to be largely indiscriminate in its application. As mentioned above in relation to model 1, evidence of suspected infringement will not amount to evidence of a specific suspected infringer rather an account holder whose internet subscription may have been used by another to infringe copyright. Deciphering whether or not an account holder or another is the suspected infringer is certainly not possible at the stage at which technical measures would be imposed under this model. The likelihood is therefore that many who have not themselves infringed copyright will be subjected to the automatic sanctions including disconnection. Additionally, and also mentioned above in relation to model 1, internet use is often collectivist in nature. Whole households, workplaces, or communities can access the internet using one IP address. An automatic sanction of disconnection on suspicion of copyright infringement will therefore have a far wider impact than simply cutting internet access for a suspected infringer. Those who use the same connection will also have their right to receive and impart information and ideas unjustifiably interfered with.

17. Putting aside direct executive interference, the unwise order-making model and the automatic and severe sanction; Liberty believes that the wording of the power would need significant amendment. As it stands the order-making power is shockingly broad in its framing. While the explanatory notes state that the Government intends for technical measures only to be applied against copyright infringers, as currently drafted the clause allows the Secretary of State, by order, to impose a technical obligation on ISPs to apply technical measures against any internet subscriber for any reason. The power could not be framed any more widely that its current form. The order-making power will at best allow the Secretary of State to order that those suspected of copyright infringements have technical measures applied and at worst it will allow the Secretary of State to order any subscriber or category of subscriber to have technical measures applied for whatever reason. In principle, as drafted, the Secretary of State could require that ISPs cut off those using (or allowing others to use) the internet to access particular websites or services regardless of whether or not any copyright is infringed. The Secretary of State could for example order that those accessing websites that fit a particular criteria be cut off – for example political or religious websites considered to be extreme. It takes little imagination to envisage where such a power could lead. What has been described as a power to cut off illegal file-sharers is in fact better described as a power to cut of internet access for whomever the Secretary of State sees fit.

Tomorrow, the Digital Economy Bill is debated by the Lords in its Second Reading. This is the first serious discussion of the contents of the Bill: so we need to make sure the Lords know that this Bill is currently going to be a disaster for justice and the digital economy.

Only Lords that speak tomorrow will, by convention, take part in the crucial committee stage of the Bill, where we can expect the Lords to make serious changes to the sections on disconnection on accusation and copyright law by diktat.

And we know massive industry lobbying is taking place: we need your help to redress the balance.

That’s why we need you to write to the Lords today: either a random Lord, since we don’t have direct representation, or perhaps a Lord you know from previous work.

Please use the ‘random Lord’ button on write to them. If you like, send your letter to more than one Lord.

Please write to the Lords today!

Things to remember:

1 Be polite and reasonable! This Bill is not their fault

2 Lords are independent-minded and will listen to good arguments

3 Many Lords will not be aware of the technical detail, but will have very good grasp of the constitutional, political and legal issues

4 Read our briefing below to remnd yourself of the key points we need to make

5 The Open Rights Group is sending briefings to all Lords, and offering face to face meetings. You can remind them of this.

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Digital Economy Bill: Brief to Lords on Second Reading

Summary

The Bill needs considerable work. There are:

1. Problems with ‘due process’ procedures and indiscriminate sanctions targeting internet users accused of copyright infringement;
2. Extremely wide powers to amend copyright law; and
3. Un-needed powers to nationalise Nominet.

1 Inappropriate and indiscriminate sanctions against users

Disconnection is not an appropriate sanction. The damage caused by such a punishment would be indiscriminate and collective, imposed on households rather than an individual infringer, and could be very severe, hampering people’s jobs and businesses, or education. Financial sanctions proportionate to the actual damage caused, against a test of evidence, would be more appropriate. 

Standards of evidence are low. Evidence is prone to errors in recording. The evidence can never identify an infringer, only an account holder. Because of the uncertainties, a hearing should take place before a punishment is imposed.

In practice, sanctions can be avoided by better business models, and are best avoided. Copyright infringement is already reducing rapidly in the UK.

No obligations on rights holders

The Bill fails to assure duties on rights holders to make sure evidence and accusations are fair and accurate. No mention is made of the roles of libel, malicious falsehood and data protection laws.

The data that is collected could easily produce databases of information that could potentially be linked in some cases to individuals, which is a privacy concern, revealing tastes and opinions. This data will be held by private investigation agencies. As UK data protection law does not extend to ‘IP addresses’, individuals are not protected from abuse of this information.

Weak and flawed appeals procedures

There is no obligation to tell people receiving notifications they can appeal to correct misinformation. This is vital to comply with the future Telecoms Package’s Article 3a, which guarantees a fair an impartial procedure, and the right to be heard for internet users. Appeals would be very limited until disconnection has already occurred: and no legal aid would be available to help with very technical defences, at least until it got to courts, which would be likely to take years.

Notifications may be sent to account holders’ email addresses, with no obligation to ensure that these addresses are current and used.

The appeals themselves may not extend to the discretion exercised in imposing a disconnection, which is unreasonable.

An end to internet cafes and shared networks

The Bill appears to impose obligations on account holders for the behaviour of other users. This will adversely affect many businesses and stop the many people who currently extend their access to the internet to people in their community.

Likely ‘special pleading’ for disconnection measures to the Secretary of State

The govrnment has said introducing disconnection is a last resort. But the trigger for introducing such is imposed is open to abuse. Evidence from Ofcom would be supplied but the Secretary of State may order that the “technical measures” stage go ahead in view of such a report or “any other consideration”.

This would encourage special pleading and very vocal content companies to obtain decisions they would not objectively warrant, damaging more valuable communications sectors, and discouraging music and film rights holders from innovating towards more sustainable and modern business models.

2 Uncertain copyright law by SI and an end to House of Lords scrutiny

Amending copyright by Statutory Instrument will create massive business uncertainty for online providers and highly discourage innovation and investment.

Amending the law by SI will prevent the Lords from scrutinising changes, and by convention, the Upper House does not oppose SIs approved by the Commons. Thus the government of the day would be able to impose changes to copyright law without proper debate or scrutiny. This would further open copyright law to ‘special pleading’ and unbalanced, politicised decision-making.

This would, for instance, create pressure to police further types of copyright infringement, such as copying and pasting of news items on blogs, which may have freedom of speech implications.

3 Powers to ‘nationalise’ to Nominet

The proposed ability of Ofcom to ‘nationalise’ Nominet is inappropriate for a functioning self-regulatory system. There is no question that Nominet is running a successful system. The proposed power would lend an undue and unnecessary influence by Ofcom over this independent body. Existing emergency powers to take control of vital national infrastructure are sufficient.

Furthermore the current wording is so poor that any domain registry operating in the UK would be subject to these powers. Many small countries operate their internet domains registries through UK providers and would find them subject to UK control, and would be likely to move their business out of the UK.

Four years ago, the ORG story began, with 1,000 digital activists signing up on Pledge Bank to pay £5 a month to create a Digital Rights campaign.

Spurred by the example of the Electronic Frontier Foundation, activists asked at OpenTech where the ‘British EFF’ was.

Four years later, as we detail in this year's Annual Report, published today, the Open Rights Group is growing at an unprecedented rate, in the face of new threats to our digital rights. 25,000 people have signed a petition in defence of those rights: the right to fair trial, to be presumed innocent and for punishments that fit the offence.

Instead of following these principles, the government threatens arbitrary and collective punishment in the name of protecting copyright online.

There has never been a time that we have been busier, or more needed.

This year, we have fought Phorm, Intercept Modernisation and government snooping on the internet and copyright term extension. By and large, we have won the battles. We may not stop copyright term extension, but we have delayed it and continue to fight. Intercept Modernisation has been kicked into the long grass – until at least after the coming election. And Phorm have ceased to promote their Webwise technology in the UK, while the EU Commission continue to threaten the UK government with prosecution over the failure to enforce our privacy rights brought to light by the technology.

Most recently, we helped knock back BBC proposals for encryption of HD programming data that would have caused unwarranted restrictions on HD content and devices.

ORG has been part of a wider movement that has tapped into a public mood that is rejecting unnecessary erosions of privacy. Equally, citizens know the value that the digital age has brought to our creativity, access to knowledge, freedom of expresson and association, and are ready to protect those rights in the face of legislative threats.

ORG’s founding supporters have given us an amazing opportunity to mobilise and defend our rights. Please support us by joining today.

Read our Annual Report

Join ORG to help us do more to protect your rights

After 25,000 signatures on the Number 10 petition, if you want something else to do, then why not send a message to Mandelson yourself?

Or more importantly, help us lobby every MP, by speaking to your own MP at a surgery.