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Digital Economy Bill: Briefing

Briefing to House of Lords on second reading of the Digital Economy Bill

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.

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.