p2pnet view P2P | Politics:- Opposition to the UK government’s digital economy bill “has increased sharply, with strong criticism in the House of Lords for its failure to offer ‘due judicial process’ to people accused of illicit filesharing under the proposed ‘three strikes‘ rules of the bill”, says the Guardian.

“Outside parliament, hotels and educators have complained that the bill also endangers their businesses and provision of the internet to the public because of its insistence that organisations providing net access should be liable for the actions of their customers”, it says.

The internet is “constantly creating new challenges for policy-makers but that cannot justify ill-defined or sweeping legislative responses, especially when there is the possibility of restricting freedom of expression or the privacy of individual users,” says Andrew Dismore chairman of Britain’s influential Joint Select Committee on Human Rights, which has members from both the House of Commons and the House of Lords.

The committee had examined the parts of the Bill “that focus on plans to tackle illegal file-sharing as well as a controversial amendment to copyright law”, said the BBC, quoting Dismore as stating, “The concern we have with this Bill is that it lacks detail.

“It has been difficult, even in the narrow area we have focussed on, to get a clear picture of the scope and impact of the provisions.”

The committee’s report, Legislative Scrutiny: The Digital Economy Bill, “examines the aspects of the bill designed to tackle illegal file-sharing to test their possible impact on the human rights of UK citizens,” says eWeek Europe, going on, “The report cites concerns from ISPs about so-called ‘technical measures’they may be forced to take against customers deemed to be persistent file-shares which could include cutting off their Internet connection.

The committee’s “main concern appears to be that the government has failed to clarify exactly what measures ISPs may be compelled to take,” says the story.

Below is the report in full

Background

1.1 This is a Government bill introduced in the House of Lords on 19 November 2009. The Bill received its Second Reading on 2 December 2009. It began its Committee Stage in the House of Lords on 6 January 2009. The timetable for Report and Third Reading has not yet been set. The Secretary of State for Business, Innovation and Skills, the Rt Hon Lord Mandelson, has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998.

1.2 We are grateful for the human rights memoranda prepared by the Bill Team and for the time taken by members of that team to meet with our staff. We wrote to the Secretary of State on 17 December 2009 asking a number of questions about certain aspects of the Bill with human rights implications or implications for the way in which we conduct our scrutiny of laws and policies for human rights compatibility. We received his response, for which we are grateful, on 14 January 2010. The correspondence is published with this Report.[1]

Purposes and effect of the Bill

1.3 The main purpose of the Bill is to update the regulation of the communications sector. It introduces a number of measures relating to digital television and radio, including updating of licensing and regulation of video recordings and video games and measures relating to online copyright infringement. It also makes provision for public lending rights to extend to new media. The Bill follows the publication of the Digital Britain White Paper, Digital Britain: Final Report, in June 2009.[2]

Explanatory Notes and Human Rights Memoranda

1.4 The Explanatory Notes to the Bill provide a basic explanation of the Government’s view that the Bill is compatible with the ECHR.[3] The supplementary Human Rights Memorandum is relatively detailed and accurately identifies a number of relevant human rights issues. The Bill Team has positively engaged with the JCHR staff and has been positive about the process of scrutiny. We do have some criticisms of the substance of the analysis in the Memorandum, which adopts some practices which we have previously criticised. For example, on the issue of online copyright infringement: the Memorandum does not contain much detail in its analysis of a number of rights; inaccurately identifies the proportionality exercise required; and fails to consider the arguments for justification in any detail.[4] In addition, it relies on the Section 6 HRA 1998 duty on both the Secretary of State and OFCOM to argue that certain delegated powers are appropriate and will not be exercised in a manner which breaches Convention rights.[5]

1.5 We are grateful for the human rights memorandum provided by the Government and for the further prompt assistance of the Bill Team. However, although the memorandum provided by the Departments on this Bill is helpful, and the information relatively full, we generally invite Government Departments to take a more proactive approach to justification for proposed interferences with individual rights. We reiterate our earlier recommendation that Departments should not rely on Section 6 of the Human Rights Act 1998 to justify their view that broad discretionary powers in a Bill or in secondary legislation will operate in a way which is compatible with human rights. Where necessary, relevant safeguards should be provided on the face of the Bill to ensure that delegated powers are adequately defined to afford legal certainty and ensure that Convention rights will in practice be protected.

Significant human rights issues

1.6 In the light of the truncated parliamentary timetable for this session, and the higher significance threshold we are therefore applying to our legislative scrutiny work,[6] we focus on a single issue in the Bill: illegal file-sharing. Our decision to prioritise this issue does not mean that we necessarily agree with the Government analysis on any other human rights issues identified in the Explanatory Notes or Human Rights Memoranda, simply that in light of the limited time to inform parliamentary debate we treat this issue as a high priority.

1.7 The Bill contains provisions to combat illegal file-sharing and other forms of online copyright infringement, via a two-stage process: first, by requiring internet service providers (ISPs) to maintain a list of accounts which copyright holders suspect may be infringing copyright; and second, through delegated powers to introduce technical measures, such as disconnection. These proposals have been subject to significant public debate about their implications for the rights of internet users to privacy and freedom of expression and the rights of copyright holders to respect for their possessions (their intellectual property rights). We have received a range of submissions, with arguments both in favour of and against the Government’s proposals. We are grateful to the individuals and organisations who responded to our call for evidence on our legislative scrutiny priorities for this session, including on this issue. We publish some of those submissions with this Report.[7] This evidence largely focuses on the question of whether the measures proposed are necessary and proportionate to any interference with the right to respect for private life and the right to freedom of expression caused by the proposals.

1.8 The development of the law in this area has attracted a significant amount of attention in respect of this balancing exercise across Europe. During 2009, agreed amendments to the proposals for a new EU Telecoms Package stressed that:

[T]he Internet is essential for education and the practical exercise of freedom of expression and access to information, any restriction imposed on the exercise of these fundamental rights should be in accordance with the European Convention of Human Rights and Fundamental Freedoms.

Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms and general principles of Community law. Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention on Human Rights and Fundamental Freedoms […]

Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned…The right to an effective and timely judicial review shall be guaranteed.[8]

1.9 There are relatively few cases in the jurisprudence of the European Court of Human Rights dealing with the regulation of activity on the internet, although these cases are increasing.[9] The Court has stressed that the rights associated with internet usage are not absolute:

Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives such as the prevention and disorder of crime or the protection of the rights and freedoms of others.[10]

1.10 On the other hand, our domestic courts have held that in some limited circumstances, the specific provisions of existing copyright law must be read to give effect to Convention rights, specifically the right to freedom of expression.[11]

1.11 We consider four significant human rights issues, below:

• Compatibility of the copyright infringement report proposals with the rights of service users to respect for privacy and freedom of expression (Clauses 4 – 8, Articles 8 and 10 ECHR);
• Compatibility of the proposal to allow the Secretary of State to introduce further sanctions, including termination or suspension of an internet account, with the rights of service users to respect for privacy and freedom of expression (Clauses 9 – 16, Articles 8 and 10 ECHR);
• Whether both sets of proposals are compatible with the right of service users to a fair hearing (as guaranteed by both the common law and Article 6 ECHR); and
• Whether the proposal to allow the Secretary of State a broad residual power to amend copyright law allows adequate opportunity for parliamentarians to scrutinise his amendments for compatibility with the right to respect for private life and freedom of expression and the right of copyright holders to respect for their enjoyment of their intellectual property (Clause 17, Articles 8, 10 and Article 1 Protocol 1 ECHR).

(1) COPYRIGHT INFRINGEMENT REPORTS (CLAUSES 4 – 8 )

1.12 The Bill would establish a mechanism whereby holders of copyright will be able to issue a copyright infringement report to an ISP where it appears that their internet service has been used by an individual account holder to infringe their copyright (’copyright infringement reports’). ISPs will then be required to issue notifications to internet users who copyright holders suspect are infringing their rights, to let them know that they have received a copyright infringement report relating to their account.[12] ISPs will be required to maintain a list of users who have been issued reports and the number and timing of reports issued.[13] Copyright holders will be able to obtain the list of those users who are recorded from ISPs. The Explanatory Notes explain that copyright holders may then use this information to make an application to the court for an order requiring the ISP to reveal the subscriber personal details. They will then be able to pursue ordinary civil proceedings against that individual for breach of existing copyright law. [14]

1.13 The precise circumstances when and how a copyright infringement report must be issued and the information which it may contain will be governed by an ‘initial obligations code’. The Explanatory Notes explain that the code will either be an industry code or will be made by OFCOM. The Bill provides for minimum information to be provided and criteria to be included in the code. This minimum information and criteria include:

• Information about copyright infringement reports, including: the evidence that must be included; the mechanism which must be used for obtaining that evidence; and the form of the report;
• Notification requirements for subscribers, including: the mechanism for identifying the subscriber; reports which the ISP must inform the subscriber of; and the requirements and means of notification;
• Enforcement information, including that the Code will be administered by OFCOM or another person (who must be sufficiently independent of copyright owners and ISPs) and that another person will have the function of determining appeals (that person must be sufficiently independent of ISPs, copyright holders and OFCOM). This right to appeal includes: an appeal in respect of the making of a report; identification of the subscriber as a person in respect of whom a report has been made; and retention of the details of an alleged infringement or inclusion of those details on a copyright infringement list).
• A requirement that the code should not be discriminatory, and that it should be objectively justifiable and proportionate in relation to what the code intends to achieve.[15]

1.14 A draft ‘outline’ obligations code was published for discussion during Committee Stage in the House of Lords for discussion. The Government accepts that this outline can be of limited value to the debate, given that the code will be made by either OFCOM or industry agreement. The purpose of the outline is to inform parliamentarians of minimum the Government considers should be covered by the code and to provide a baseline for speedy debate by industry, in the interests of ensuring that these provisions come into force as soon as possible after the Bill is passed.[16]

1.15 The Explanatory Notes accompanying the Bill explain that these provisions may potentially engage both the right to private life and the right to peaceful enjoyment of possessions (Articles 8 and Article 1, Protocol 1 ECHR).[17] The Government Memorandum takes a different view, arguing that these provisions do not engage any rights “as the procedure merely constitutes a deterrent and does not affect subscribers’ rights at all, since they will continue to receive the services they contracted for from ISPs”.[18] We wrote to the Minister to ask for further information about the Government’s view. Although we asked about the rights of both service users and ISPs, we focus here on the rights of individual users, as the principal concerns raised in debates and the evidence we received relate to the rights of individual internet users. In his response, the Minister confirmed the Government’s view that these proposals do not engage Convention rights and argued:

• The sending of notifications and the keeping of lists in themselves do not affect the level of service provided by the ISP and received by the subscriber.
• The list will not reveal names and addresses of the infringing subscribers, although the list will associate copyright infringement reports with an individual subscriber. However, in order for any third party to see any personal information relating to the subscriber, an application would need to be made to the court for an order requiring the ISP to disclose that information.[19]
• The number of reports relating to a subscriber will have to have reached any threshold set out in the code before an ISP is subject to the obligations: “The Government is not requiring ISPs to monitor internet usage by the subscribers or to take any action against an individual subscriber under the obligations other than sending him notifications.”

1.16 The Minister goes on to explain that if these rights were engaged, the Government’s view is that any interference would be fully justified:

Articles 8 and 10 are qualified rights and it is acceptable under the Convention to interfere with these rights if it is in accordance with the law and it is necessary in a democratic society….the receipt of a notification does not impede the subscriber’s access to the internet in any way. Article 1 Protocol 1 is also a qualified right and it is acceptable under the Convention to interfere with this right in the public interest and subject to the conditions provided for by law. Article 1 provides that the right of the State to enforce such laws as it deems necessary to control the use of property is not impaired in any way. The sending of notifications is in the public interest. Copyright holders should be able to protect their copyright and enforce their rights. In the case of online copyright infringement, the involvement of ISPs is needed for them to do so.

1.17 Broadly, we accept the Government’s analysis. In our view, it is likely that these proposals will not engage Article 10, since the practical impact on the service user’s right to continue to access the internet service he is using is not limited. Although it may be argued that the proposals could have a chilling effect on those who wish to use internet facilities, in our view, this effect is likely to be limited. In so far as the proposals may impose a condition on the way in which ISPs will be required to fulfil their contractual obligations to a service user, this may place a limit on the rights and it could be argued that they impact upon the service user’s possession of a contractual right (which may be protected by Article 1, Protocol 1 ECHR). Again, however, we consider that this impact will be limited in the light of the limited practical effect on the users’ rights to access the internet services which they have contracted. However, we note that the Government analysis of the proportionality exercise required by Article 1, Protocol 1 ECHR is inaccurate. While a greater deal of discretion is granted to States in relation to property rights, measures which restrict property rights must be justified by the Government, by showing that the measures concerned are (a) in the public interest and (b) that the measures strike a fair balance between the rights of the individual and the public interest. Although the Government has greater scope in respect of measures of taxation – where its activities need only be “not devoid of reasonable foundation” – it must still show the justification for its activities (as such, it is wrong to say that Government discretion “is not impaired in any way”).[20]

1.18 We consider that there is a stronger case that these provisions may engage the right to respect for private life (Article 8 ECHR) than has been acknowledged by the Government. Although the proposals relate only to a mechanism for the copyright holder to issue reports of their suspicions that their rights have been breached, they do impose a duty on ISPs to collect information about those suspicions. Although this information relates initially to an IP address, the purpose of these proposals is to require the ISP to associate repeat suspicions with a particular account. In effect, the Government will require an ISP to hold information about allegations of unlawful activity against a particular account holder. For obvious contractual reasons, the ISP will also hold the personal details of the account holder, including name and address. In so far as this information is held together, and could allow individuals to ascertain that an individual account holder is suspected of unlawful activity, in our view it is possible that the right to respect for private life could be engaged.[21] However, in the light of the safeguards provided, including the requirement that no personal information about the account holder may be revealed without an order of the court requiring disclosure and the requirement that any information collated will be subject to the ordinary application of the Data Protection Act 1998, we consider that the impact of the proposals, and therefore the extent of any interference with the right to respect for private life, will be limited.

1.19 Against this background, we consider the justification for these measures proposed by the Minister. We disagree with some arguments in the evidence which we received, that copyrights are not protected by Article 1, Protocol 1 ECHR.[22] It is clear from the case-law of the European Court of Human Rights and the European Court of Justice (interpreting the ECHR and the general principles of community law) that the right to respect for property includes intellectual property.[23] It is also expressly recognised as a right in the EU Charter of Fundamental Rights.[24] It is clear that steps taken to protect these rights pursue a ‘legitimate aim’ for the purposes of justifying an interference with Convention rights. The real question in balancing the competing rights concerned is whether the interference with the right to private life is necessary and proportionate to the Government’s objective of protecting the rights of copyright holders. This requires an analysis of the impact on the privacy of the individuals concerned, the degree of harm posed to copyright holders, the availability of other measures of protection and the ability of the measures proposed to meet their goal.

1.20 The Minister told us that existing rules for civil and criminal enforcement should be supplemented for two reasons: (a) for technical reasons relating to shifting IP addresses, “it is difficult for copyright owners to effectively take action against infringers”; and (b) “copyright infringement through use of peer-to-peer is a mass activity undertaken by significant numbers of people; however each individual infringement is typically of low value. It is simply not practical or economic for copyright owners to undertake a mass programme of infringement identification, apply for a mass of court orders and take mass civil action given that the majority of individual cases will only represent a single low value judgment”.[25] In effect, the Government considers that the technical difficulties associated with attaching an individual account to multiple unlawful activities undermine the value of traditional civil and criminal remedies for the rights user.

1.21 The Government has explained that it understands that copyright holders only intend to take infringement action against those individuals who have been subject to a significant number of copyright infringement notices.[26] However, there is nothing on the face of the Bill which translates this intention into a legal limit on the circumstances in which an ISP will be required to disclose a copyright infringement list. The code of obligations will indicate the number of reports necessary before a list is disclosed but there is no limit on how few or how many must be collated before civil action is facilitated by the disclosure of the list. The outline code suggests that the list will not be disclosed until after 30 reports have been received, but does not give an indication of the appropriate timeframe during which these reports should be received (for example 30 reports over six months may show a different level of suspicion than 30 reports over 10 years). This figure can only provide an indication of the figure that the Government considers appropriate: it does not limit in any way the scope of the power to require disclosure.

1.22 Given that the impact on the rights of the individual user is limited and accompanied by safeguards, we accept in principle the Government’s argument that these proposals are necessary to allow copyright holders to pursue effective, existing civil remedies. However, we consider that the measure would be more proportionate if the mechanism for the disclosure of copyright infringement lists were limited to those circumstances when a high number of copyright infringement reports have been received. This would ensure that these proposals were more appropriately targeted to meet the purpose identified by the Government and the justification based on the need to supplement the ordinary civil and criminal remedies open to copyright holders. If copyright holders were capable of using this regime to identify users on the basis of a single alleged infringement linked to one address, the Government’s justification for the involvement of ISPs in the ordinary civil process falls away.

1.23 We consider that despite the lack of information on the face of the Bill, it is unlikely that the operation of 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). The limited impact on these rights by the operation of the copyright infringement reporting mechanism proposed is likely to be justifiable. However, in the light of the concerns raised by internet users and human rights organisations, we recommend that the Government provide a further explanation of its views on why these proposals are proportionate, including by outlining the harm currently suffered by individual copyright holders and the wider public interest in promoting creativity, and why that harm cannot be appropriately addressed by existing civil and criminal penalties for copyright infringement.

1.24 In order to consider how these proposals might operate in practice and to assess the proportionality of these measures, we have had to rely on the contents of the Government White Paper, statements during debate and other documents prepared by the Government Bill Team in order to envisage how these proposals might operate. In the light of the fact that the copyright infringement report and any subsequent list may form the basis for the imposition of technical measures which will have a more significant impact, we are disappointed at the lack of detail about the process provided on the face of the Bill. We return to the difficulties we have experienced in assessing the compatibility of these skeleton proposals, below.

(2) TECHNICAL MEASURES (CLAUSES 9 – 16)

1.25 The Bill provides for the Secretary of State to have the power to require ISPs to take “technical measures” in respect of their subscribers. The Explanatory Notes explain that these measures may include limiting access of subscribers and restricting broadband width. These measures will be governed by a “technical obligations code”, which will provide the detail of the enforcement of technical measures and the appeals system for internet subscribers.

1.26 There is very little detail about the scope of this power on the face of the Bill. The entire technical measures mechanism will be created by a combination of secondary legislation and the “technical obligations code”. A number of key features are undefined or extremely broad:

• Liberty pointed out that there was nothing in the Bill to limit the Secretary of State’s power to copyright infringement cases, and that this power could be used by the State to limit access to politically contentious internet sites.[27] The Secretary of State has since proposed an amendment to limit his power for the purposes of protecting copyright.[28]
• The criteria for making a technical measure will be defined by the Secretary of State.[29] Given that these measures will introduce alternative sanctions to the ordinary civil and criminal process, the scope of the criteria for their imposition will be extremely important.
• Technical measures include any measure which limits the speed or other capacity of a service user, prevents a service user from accessing particular material, suspends the service provided to a subscriber or limits the service provided to the subscriber in any other way. There is nothing in the Bill which would permit the Secretary of State to prevent an individual seeking an alternative service with another ISP. However these measures are extremely broad. For example, although the Government explains that a technical measure may include ‘temporary suspension’, there is nothing on the face of the Bill which clearly limits suspension of an account to a limited time-frame.[30]
• Although the Government intends these proposals to be part of a ‘graduated’ response to copyright infringement, there is nothing on the face of the Bill which requires the Secretary of State to demonstrate that the initial obligations code set out above is inadequate to protect copyright and further administrative provision for technical measures is necessary and proportionate. Although the Secretary of State can direct OFCOM to report on whether technical obligations should be imposed, OFCOM is not required to consider whether technical obligations are necessary or which measures would be proportionate, only whether they will be effective. In any event, the Secretary of State may initiate technical obligations in pursuit of the assessment of OFCOM or for any other consideration. As the Bill stands, the Secretary of State could make an order in relation technical measures the day after the coming into force of Clause 11, for any reason he saw fit.[31]

1.27 We wrote to the Minister to ask why it was appropriate for these details to be left to secondary legislation and a statutory code. He explained:

Much of the detail of how the provisions will operate is being left to the codes as this will allow for flexibility. The codes will need to be amended from time to time so that they can stay relevant and effective as time passes and circumstances change.[32]

1.28 On a number of occasions in the past, we have explained our view that such a skeletal approach to powers which engage human rights is not appropriate. There must be adequate detail on the face of the Bill to allow for an assessment of whether the provisions will operate in practice in a way which protects individual rights. If any safeguards are necessary to protect individual rights, these should be on the face of the Bill.[33] The lack of detail in relation to the technical measures proposals – and in particular, in relation to the scope of technical measures, the criteria for their imposition and the enforcement process – has made our assessment of the compatibility of these proposals with the human rights obligations of the United Kingdom extremely difficult. As we have explained in the past, flexibility is not an appropriate reason for defining a power which engages individual rights without adequate precision to allow for proper parliamentary scrutiny of its proportionality.

1.29 The Government accepts that the operation of these provisions may interfere with the right to respect for private life, the right to freedom of expression and the right to peaceful possession of property. The Explanatory Notes explain:

The rights are engaged because affecting the ability of the subscriber to access the internet at a given speed or, potentially at all will tend to affect their ability to communicate with others by on-line methods (by e-mail, and through instant messaging and contributions to internet discussions). This would tend to affect their private and family life in the widest sense, but also Article 10 rights to freedom of expression and information.[34]

1.30 We disagree with the view expressed by some witnesses that these measures do not engage Convention rights.[35] We consider that the Government is right to identify that these measures will engage both Article 8 and Article 10 ECHR. We do not understand why the Government refer to the engagement of Article 8 in “the widest possible sense”. Article 8 ECHR protects private and family life, home and correspondence. We consider that the limitation of access to an individual internet account (and any associated e-mail accounts), has a very direct impact on the right to respect for correspondence.[36] A number of witnesses who wrote to us considered that technical measures could have a broad impact on individual users and their families. Limitation or suspension of an account may affect not only the account holder, but any associated users (children, family members or flatmates).[37] They may use this account not only for leisure purposes but also may require internet access for work or education.[38] Concerns have also been raised that these provisions may have a particular impact on businesses and public authorities who provide wi-fi ‘hotspots’ for communal use.[39]

1.31 On the other hand, other witnesses argued that the impact on the right to respect for private life and the right to freedom of expression would be limited. Technical measures would apply to only one account. Service users would be able to open another account to access the internet, or would be able to access the internet subject only to defined limitations.[40] Some witnesses indicated that warnings would be given of any relevant sanction before the sanction would be imposed. BPI (British Recorded Music Industry) obtained a legal opinion that in principal obligations of this type would not be incompatible with the Convention. That opinion highlighted the “very significant challenges for rights holders in identifying those responsible for infringements of copyright and then in taking action to prevent further infringement”. [41]

1.32 The Explanatory Notes argue that any interference is justified:

Such interference does not render the provisions incompatible with the Convention. The provision represents an acceptable balance between subscribers’ rights and the public interest in the protection of copyright of third parties. Copyright owners have limited methods of protecting their copyright, which may be less effective across national boundaries….By providing for a warning to subscribers that they are infringing the rights of others and providing them an opportunity to rebut the assumptions underlying that warning before technical measures are taken against them, these provisions strike the appropriate balance between the rights of subscribers and the rights of copyright holders.

1.33 While striking a ‘balance in the public interest’ is an accurate description of the test for justification of infringement of the right to respect for possessions, justification of infringements of the right to freedom of expression and the right to respect for private life and correspondence require a different and more onerous exercise of justification by Government. The Government must show that the proposed interference is prescribed by law and necessary in a democratic society to meet a legitimate aim.[42] In short, the Government must provide evidence that the measures are necessary and proportionate to a legitimate aim. The Government Memorandum accurately identifies that protecting the rights of copyright holders is a legitimate aim. However, neither the Explanatory Notes nor the Memorandum gives a more detailed explanation as to why the Government considers that the proposals are necessary or proportionate given existing civil remedies for copyright holders and the proposals for copyright infringement reports and lists in the Bill.

1.34 In response to our request for further information, the Minister outlined the justification set out above, in relation to initial obligations and added:

The Government hopes that the initial obligations…will be effective but if they are not it needs to be able to take further appropriate action to curtail the activities of persistent infringers who have disregarded the warnings should circumstances demand it.

Technical measures will hinder or deny subscribers access to the internet and their e-mail correspondence so that their right to freedom of expression and private and family life may be affected. No one has a conditional right to access the internet. If a subscriber does not pay the ISP will eventually cut him off. The Government believes that the measures will be an acceptable balance between subscribers’ rights and the public interest in the protection of the interests of copyright owners. The Government considers that this will be legitimate and proportionate action and is necessary for the protection of the rights of copyright owners. The latter have limited methods of protecting copyright and these methods may be less effective across national boundaries than within a single jurisdiction. Infringement over the internet is likely to cross national boundaries. These provisions will enhance the effectiveness of copyright protections.

Copyright owners have to provide evidence of the apparent infringement in a (copyright infringement report) and the code has to set out requirements about the means of obtaining such evidence and the standard of evidence. The notification by the ISP to the subscriber has to include such evidence. Technical measures will only be taken against serious infringers.

1.35 We consider that, in the light of the more serious impact of technical measures on the rights of individual users, as outlined above, it is important for the Government to set out its justification for these proposals clearly. This view is reinforced by the recent reiteration by the EU that measures to restrict internet access must be compatible with Convention rights and provide adequate protection for due process. We return to the right to a fair hearing, below. Against this background we have a number of concerns about the justification offered by the Government.

1.36 We accept that no individual has a fundamental right to access the internet, per se. However, as we have explained above, it is generally accepted that measures taken to limit individual access to internet services by the State will engage Articles 8 and 10 ECHR. We do not agree that a comparison can be drawn with the power of the ISP to terminate services for non-payment, as this involves the exercise of a contractual right which forms the basis for the service provision. This is very different from the State taking positive measures to restrict the basis on which an individual user may access services from an ISP with whom he has an existing service contract and, possibly, from accessing an internet account (and associated e-mail accounts).

1.37 Since the rights outlined above are engaged, the Government has a responsibility to demonstrate its justification for interfering with them. This will include consideration of the seriousness of the impact on the rights of individual service users, the degree of harm suffered by copyright holders and the necessity and proportionality of the measures proposed to protect copyright holders. This assessment will be highly fact sensitive, and without the full details of how technical measures will operate in practice, it is difficult for us to form a view about human rights compliance. As drafted, the Bill authorises the indefinite suspension of an individual account on the basis of the suspicion of a copyright holder that a single infringement of copyright has occurred. That account may be used by the account user and his family for work and education and suspension may limit the ability of family members to access e-mail accounts associated with the service provided by that ISP. It is unclear how technical measures will affect individuals’ ability to access an alternative service in practice.

1.38 Looking at the potential interference from this perspective, it appears to us that the Government should be required to provide more detailed justification than it has provided in the Explanatory Notes and the Human Rights Memoranda. As we explain above, this should include evidence of the harm suffered by individual copyright owners and the wider harm to the public interest. It should also aim to demonstrate why the Government considers that additional technical measures – of varying degrees of severity – will be necessary, proportionate and accompanied by adequate safeguards for the rights of individual users. The Government view is that adequate safeguards will apply, because individual copyright holders will provide evidence and will only seek sanctions against “serious infringers”.[43] However neither of these limitations are outlined on the face of the Bill and the standard of evidence expected or the standard of proof to apply has not been clearly explained. We reiterate our invitation to the Government to provide fuller justification for its proposals.

1.39 In our view, it is impossible assess fully whether these proposals will operate in a compatible manner in practice without more detail of the proposed mechanism for technical measures. Because of the lack of detail on the face of the Bill and the limited foundation for justification provided for the breadth of these proposed powers, we acknowledge the concerns about the 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.

1.40 There are a number of issues which could helpfully be clarified; some on the face of the Bill, in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention. We recommend that the Minister clarify:

a)  the precise intended impact of these proposals on individual accounts, including (i) whether technical measures may include indefinite suspension of an account and whether any service limitations imposed will be for a specified time-frame and/or renewable; and (ii) any potential impact the imposition of technical measures may have on the ability of a user to secure an alternative service;

b)  the minimum criteria which would be required to be satisfied before the imposition of technical measures. The Government has indicated that technical measures will follow the issue of copyright infringement notices. It would be helpful if the Government could clarify whether (i) the imposition of technical measures will be subject only to the initial assessment of the copyright holder that it appeared that the individual service user had breached his or her copyright; and (ii) if so, would the same standard of evidence and proof be required for the imposition of technical measures as would be required for the issue of copyright infringement reports?

1.41 We recommend that the Bill be amended to make it clear that technical measures may only be introduced after an assessment by OFCOM of the necessity and proportionality of these new measures, taking into account the impact of the initial obligations code. In so far as it is possible, we recommend that the Bill should be amended to provide additional details on the minimum criteria for the imposition of technical measures, including the standard of proof which must be applied; the “trigger” for the imposition of such measures; and any relevant defences for service users who have taken all reasonable measures to protect their service from unauthorised use and who have not knowingly facilitated the use of their service for the purposes of infringing copyright.

(3) RIGHT TO A FAIR HEARING (ARTICLE 6 ECHR)

1.42 The Bill provides for both the initial obligations code and the technical obligations code to make provisions for appeals against decisions of the relevant enforcement body (which could be an industry body, a specialist body or OFCOM).[44]

1.43 There is very little detail on the face of the Bill or in the Explanatory Notes about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on any copyright infringement lists. The Government does not consider that these decisions involve a determination of rights, so Article 6 ECHR is not engaged. Liberty argues that these proposals would be improved if the rights of subscribers to appeal were included on the face of the Bill.[45]

1.44 We accept that there is no clear answer to whether the decisions taken during the process of issuing copyright infringement reports and infringement lists involve the determination of any individuals’ civil rights and that it is unlikely that Article 6 ECHR is engaged. However, in the light of the acceptance by the EU that a fair process is necessary for regulation of individual service users’ access to the internet, we consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list at this stage would lead to a fairer procedure and so be a human rights enhancing measure.

1.45 The Government accepts that the exercise of powers pursuant to the proposals on technical measures are likely to involve the determination of civil rights, and so must provide for a hearing by an independent and impartial tribunal. The Bill provides inadequate detail to determine whether the initial decision maker will be adequately independent and impartial. It does however provide for the technical obligations code to provide a two-tier appeals process: first to an as yet unidentified reviewing body (who must be independent of ISPs, copyright holders and OFCOM), then a further appeal to the First-tier Tribunal on grounds that the initial decision was based on an error of fact, was wrong in law or unreasonable. The technical obligations code must also deal with the power to award costs. It may provide that the imposition of technical measures is suspended pending an appeal. However, the Bill does not require that they must be suspended until a hearing takes place.

1.46 In his reply to our request for further information, the Minister said:

It is envisaged that if an order is made imposing technical obligations on ISPs, either the order or the underlying code will provide that a subscriber must receive a number of written warnings before the level of infringements associated with him reaches the trigger level for a technical measure to be taken against him. It is envisaged that a final letter will be sent setting out the nature of the measure and when it will be applied. However the subscriber will have a period in which to request their case be heard by the independent body. It will then be for the body to consider the case on its merits and decide whether the sanction should be applied.

If the body upholds the sanction, the subscriber will have a further period to appeal this decision to the First-tier Tribunal. The Government intends that the sanction will only be applied once the appeals process has been exhausted or a subscriber chooses not to take the appeal further.[46]

1.47 The Minister also told us that it was envisaged that the First Tier Tribunal would have the power to conduct a full rehearing of all the issues in any case and that any application fee would be ‘modest’ and the Tribunal would be able to award costs in favour of the successful applicant.[47]

1.48 Although there is very little detail about the appeal mechanism, the enforcement and reviewing bodies on the face of the Bill, it is our view that, provided the time frame for review and appeal is adequate and the measures are routinely suspended until the right of appeal is exhausted, it is unlikely that these provisions will be structurally incompatible with Article 6 ECHR. The provision of a review by an independent reviewing body and a full right to appeal before the First Tier Tribunal, prior to the imposition of any sanction is adequate to meet the requirements of the Convention for a hearing by an independent and impartial tribunal.

1.49 We do however have some concerns about the substance of the right to appeal provided in the Bill and its compatibility to comply with the right to a fair hearing. As we noted above, there is nothing on the face of the Bill which indicates the criteria which will be applied in order to trigger technical measures, nor is there any indication of the type of evidence that will be required or the standard of proof that will be applied. Without these details, it is difficult to assess what value the right to appeal will have, because it is difficult to consider whether the original decision to apply technical measures involves a fair consideration of the rights concerned. For example, it appears that technical measures may be imposed on the same “trigger” as copyright infringement reports. That is, on the basis of evidence presented by a copyright holder that his or her rights appear to have been infringed. It is difficult to assess what the individual responsible for imposing a technical measure will assess: whether the individual copyright holders’ rights have been infringed or simply whether they have complied with the process for a copyright infringement report and that the relevant user continues to create the appearance that their rights are being infringed. In the light of the fact that these technical measures will in effect provide an alternative to the application of ordinary civil, and in some cases, criminal sanctions, we consider that the latter option could lead to a risk of unfairness and incompatibility with Article 6 ECHR and common law procedural fairness. In our view, the independent and impartial tribunal, in this case the First Tier Tribunal, must be able to consider the substance of the determination of the relevant rights and any relevant defences, including whether the basis for determination is supported by evidence.

1.50 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 substantive decision making process for the imposition of technical measures and its compatibility with Article 6 ECHR and the common law.We recommend that at a minimum, the Government must be required to confirm that the First Tier Tribunal will be able to consider whether an infringement of copyright has occurred and any defence that no infringement of a copyright holders’ rights has been committed or knowingly permitted by the account holder. Further information about the quality of evidence to be provided and the standard of proof to be applied should be provided, ideally on the face of the Bill, and at a minimum by the Minister during the course of debates on these provisions. In addition, we recommend, for the avoidance of doubt, that the Bill require that the technical obligations code must provide for any appeal rights to suspend the application of technical measures and for costs of any successful appeal to be recoverable by any successful applicant.

(4) RESERVE POWERS (CLAUSE 17)

1.51 Clause 17 proposes that the Secretary of State should retain a reserve power to amend the Copyright, Designs and Patents Act 1988 – including the proposals in the Bill – by secondary legislation. This power is limited to changes for the “purpose of preventing or reducing the infringement of copyright by means of the internet” and will be available “if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur”. The power may be exercised to impose new powers or duties on individuals or to require the payment of fees. It does not permit the Secretary of State to modify or create criminal offences. Orders under this power are subject to affirmative resolution. The Explanatory Notes explain that the Government considers that this residual power is necessary for a “flexible” response to “meet technological evolution”.[48] The Government explains that these powers are limited in so far as they are subject to the duty on the Secretary of State to act in a Convention compatible way. In addition, the Government has stressed that the Minister will not be allowed to act incompatibly with the requirements of EU law or the general principles of domestic administrative law.

1.52 The limitations highlighted by the Government in their response to queries raised about the need for such a broad reserve power range from narrow statutory limits which prevent amendment to the criminal law and limits which generally apply to all secondary legislation. There has been little Government justification for the breadth of this reserve power other than the need for the Secretary of State to respond swiftly and flexibly to changing technological conditions. In the light of the breadth of the other powers proposed in this Bill, we wrote to the Minister to ask for further justification, but no more specific reasons were given.[49] As we have explained on numerous previous occasions, where a power has the potential to have a significant impact on individual rights, ideally the scope of that power should be defined in primary legislation and accompanied by such safeguards as to ensure that the power will be exercised in a proportionate way.[50] The scope of this power was also criticised by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of the House of Lords, both of which recommended that Clause 17 be deleted from the Bill.[51]

1.53 In his response to our letter, 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 for these orders. The Government amendments would change the proposal, limiting the power to amendments ‘for the purpose of preventing or reducing any infringement of copyright by means of the internet’ where the Secretary of State is ’satisfied that’ the infringement is ‘having a serious adverse effect on businesses or consumers’ and ‘making the amendment is a proportionate way to address that effect’. However, this removes the existing limitation that the proposals respond to technological developments.

1.54 The super-affirmative procedure would require the Secretary of State to consult “such persons” that the Secretary of State “thinks likely to be affected” by the order and any such persons he thinks fit. After consultation, a draft and explanatory document will be laid before Parliament for 60 days. The Secretary of State must then have regard to any representations, any resolutions of either House and any recommendations of any Committee of either House of Parliament charged with reporting on the draft order during that 60 day period. If any Committee charged with reporting on the draft order makes a negative recommendation in relation to it, the Secretary of State may only proceed with the draft after either a resolution of the relevant House affirming the order or a resolution rejecting the recommendation of the Committee.[52]

1.55 In the light of the breadth of this proposed reserve power and the need for a delicate balance to be struck between the right to freedom of expression and the property rights of copyright holders in any changes to copyright law, we are concerned that Clause 17, as amended, remains overly broad.

1.56 We welcome the Government’s decision to introduce the use of the super-affirmative procedure. However, we recommend that:

c)  The Minister should explain why parliamentary scrutiny of any relevant human rights issues will be adequate without any power for Members of either House to propose amendments to the draft order.

d)  Any explanatory memorandum accompanying an order made under Clause 17 should include an assessment of the Government’s view on the compatibility of the proposals with the human rights obligations of the United Kingdom, including the European Convention on Human Rights.

e)  The Government should be required to clarify which Committees it would consider ‘charged’ to report on any relevant proposal, other than the Joint Committee on Statutory Instruments (JCSI). We are not required to report on any secondary legislation other than remedial orders laid under the Human Rights Act 1998, but we do report from time to time on proposals in secondary legislation which we consider raise particular human rights concerns. We would be grateful if the Government would explain how a negative recommendation from our Committee or its successors would affect the Government’s approach to an order.

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1   Written evidence, pp 29-37 Back

2   Department for Culture Media and Sport, Digital Britain: Final Report, June 2009, Cm 7650 Back

3   HL Bill 1 (2009-10), EN, paras 228 – 264. Back

4   See paras 10 – 14; para 20. We previously criticised this approach in, for example, Ninth Report of Session 2008-09, Borders, Citizenship and Immigration Bill, HL 62, HC 375, para 1.7 Back

5   See for example, paras 6 and 20. We previously criticised this approach in, for example, Twentieth Report of 2005-06, Legislative Scrutiny: Eleventh Progress Report, para 3.7. Back

6   Third Report of 2009-10, Legislative Scrutiny: Financial Services Bill and Pre-Budget Report, HL 21/HC 184 , para. 2.1. Back

7   Some submissions we received referred to a number of issues or priorities outlined in our call for evidence on our legislative scrutiny priorities. A number of these submissions will be published shortly with our next legislative scrutiny report. Back

8   Article 1(3)(a), Revised EU Framework Directive. See EUROPA Press Release, EU Telecoms Reform, Memo/09/568, 18 December 2009. Back

9   See for example, recent consideration of the impact of the internet on libel and the second publication rule: Times Newspapers (No 1 & 2) v United Kingdom, App No 3003/02 Back

10   KU v Finland [2009] 48 EHRR 52. This case involved the need to balance the privacy rights of a child whose personal details were posted online by a third party on a dating website, inviting contacts for sexual activity. The child’s parents sought disclosure of the third party’s personal details from the ISP in order to pursue criminal proceedings. The Court held that there had been a breach of Article 8 ECHR as Finland had failed to provide for a mechanism which would allow for disclosure. Back

11   Ashdown v Telegraph Group [2001] EWCA Civ 1142. Back

12   Clause 4 Back

13   Clause 5 Back

14   HL Bill 1 (2009-10), EN, para 39. Back

15   Clause 8 Back

16   Department for Business, Innovation and Skills, Infringement of Copyright: Outline of Initial Obligations Code, January 2010. See also Cover Note to the Outline Code, January 2010. Back

17   HL Bill 1 (2009-10), EN, para 233 Back

18   Written evidence, p 72 Back

19   The Explanatory Notes explain that in order to secure personal information, the copyright holder will still have to seek a court order for disclosure, as they do now, following the Norwich Pharmacal process. This is named after the first case where the principles were identified (See Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133).A ‘Norwich Pharmacal’ order requires a respondent to disclose certain documents or information to the applicant. The respondent must be a party who is involved or mixed up in alleged wrongdoing, whether innocently or not, but who is not likely to be party to the proceedings. See EN, para 39. Back

20   Third Report of 2009-10, Legislative Scrutiny: Financial Services Bill and Pre-Budget Report, HL 21/HC 184 , para. 1.13 – 1.16 Back

21   See S & Marper v United Kingdom, App No 30566/04, 4 December 2008, where the court outlines its approach to the collection and retention of personal information on a Government database. See also Leander v Sweden (1987) 9 EHRR 433; Z v Finland (1997) 25 EHRR 371. Back

22   See for example, Paul Cowling, written evidence, p 67 Back

23   See Melnychuk v Ukraine (2006) 42 EHRR 42; Laserdisken v Kulturministeriet C-479/04, Judgment 12 September 2006; Promusicae v Telefonica de Espana C-275/06, OJ C64/9, 2008. Back

24   Article 17(2). Back

25   Written evidence, p 30 Back

26   Ibid. Back

27   Liberty, Second Reading Briefing on the Digital Economy Bill, November 2009. Back

28   Written evidence, p 30 Back

29   Clause 11 Back

30   Clause 10. Although the Government have recently provided a valuable reassurance that “suspension” should be given the Collins English Dictionary interpretation, which refers to temporary limitations, there is no limit on renewal of any suspension or any restriction placed on the broad non-exhaustive list in Clause 10, which allows for limits to be applied in “any other way”. See HL Deb, 22 January 2009, Cols 1085 – 1086. Back

31   New Sections 124G – 124H. Clause 11, New Section 124H(1)(b). Back

32   Written evidence, p 30. Back

33   See for example, Twenty-first Report of 2005 -06, Legislative Scrutiny: Eleventh Progress Report, HL Paper 211, HC 1216, paras 3.10 – 3.13. Back

34   HL Bill 1 (2009-10), EN, para 235 Back

35   See, for example, Alliance Against IP Theft, written evidence, p 41 Back

36   Although the European Court of Human Rights has accepted that availability of alternative formats and means of correspondence will be relevant to the degree of impact measures restricting correspondence will have, and on the question of proportionality, Article 8 remains engaged by steps taken to control the means by which individuals correspond with each other. See for example, Chester v UK App No 32783/96, 11 September 1997.In this case, the State had no obligation to provide prisoners with the facility to communicate by telephone when there were existing and adequate facilities for postal correspondence. This case concerned positive duties to secure communication for prisoners, not steps taken by the State to regulate means of correspondence otherwise open to private individuals. Back

37   See, for example, Action on Rights for Children, written evidence, p.37. Back

38   Ibid. Back

39   See for example, HL Deb, 2 December 2009, Cols 781 – 783 Back

40   See, for example, BPI, written evidence, p 44 Back

41   Ibid. Back

42   The language in Articles 8 and 10 ECHR differ slightly, but the test is broadly the same. The Government must show that any interference is necessary and proportionate to meet a legitimate aim. Back

43   Written evidence, p 34. Back

44   Clauses 8 and 13 Back

45   Liberty, Second Reading Briefing, November 2009. Back

46   Written evidence, p 30 Back

47   Ibid. Back

48   HL Bill 1 (09-10), EN, Para 239 Back

49   Written evidence, p 30 Back

50   See for example, Twelfth Report of 2007-08, Legislative Scrutiny: 1) Health and Social Care Bill, HL Paper 66/ HC 379, paras 1.42 – 1.43. Back

51   Delegated Powers and Regulatory Reform Committee, Second Report of 2009-10, Contaminated Blood (Support for Infected and Bereaved Persons) Bill [HL]; Digital Economy Bill [HL]; Equality Bill – Parts 1 to 5; Third Parties (Rights against Insurers) Bill [HL], HL Paper 24, para 19. See also Fourth Report of 2009-2010, Personal Care at Home Bill etc, HL Paper 41, paras 2 -9. House of Lords Constitution Committee, Sixth Report of Session 2009-2010, Clause 17 of the Digital Economy Bill, HL Paper 40. Back

52   Amendments No 211A, 211B, 302B and 302C Back

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