What's in a name? Finally, a public admission by the UK government that the Digital Economy Bill is about Graduated Response. With an  appeals process, not a prior hearing, thus it is unlikely to comply with a new European law. 

 

 The Minister responsible for the Digital Economy Bill in the House of Lords has admitted in Parliament that the Digital Economy Bill is about bringing in a graduated response  system for copyright enforcement on the Internet. This appears to be the first time that the UK government has been explicit in calling it by its rightful name.

 

Speaking in the Lords last week (26 January 2010), Lord Young of Norwood Green, Parliamentary Under-

Secretary of State, Department for Business, Innovation and Skills (BIS) said:

 

"our process might well be described as taking a graduated approach. In the first instance, people will be sent a letter saying, "It appears that there has been an infringement. If it has been done unwittingly or by someone else, here is what you can do to remedy the situation".  (Hansard, 26 Jan, col 1307)

And he confirmed it again shortly afterwards saying: "it provides a graduated response that seeks to change the culture and the behaviour." (Column 1308)

 

The  graduated  response system is  established in  the Digital Economy Bill in two parts. Clauses  4-7  establish the system of sending warnings to users accused of copyright infringement,  and include  the Initial Obligations Code ( see previous article on iptegrity.com). 

 

The sanctions, or punishment to be adminstered to people who are labelled ‘persistent offenders' will be carried out using automation by the broadband providers. The basis for  implementing these punishments will be established  in the other code, known as the Code by Ofcom about obligations to limit Internet access (see my previous article) as  set out in Clauses 12-13.

 

The use of Codes means that the government can hide most of real detail from both Parliament and the public.  The content  of both Codes will be written behind closed doors by Ofcom, without the scruntiny of Parliament, or any information being made available to UK citizens.

 

Questions were asked in the Lords concerning the likely content of the  Code by Ofcom about obligations to limit Internet access.  It seems that rights holders will still have to go to court to obtain the order for the release of users' personal data by the broadband providers. That personal data will include the names and addresses of the alleged infringers. The intent is that these users will be ‘offered' an out-of-court settlement by the rights-holders, prior to having their Internet access cut off or their bandwidth throttled. These sanctions will be applied by the broadband provider.

 

The subscriber may appeal, but the appeal will be after the sanction has been ordered or the out-court settlement has been offered.

 

Lord Young of Norwood Green says it would an ‘unacceptable burden on the courts' to offer everyone accused of copyright infringement under this Bill the right to a prior court hearing, which under European law, they are entitled to. I have included his full answer on this topic in the Lords below because UK citizens should  know how their rights are being played about with.

 

Although he claims that the First Tier Tribunal would be a ‘judicial body', he is also clear that subscribers will appeal if they choose to, after they have been told how they will be sanctioned. This surely is not compliant with the legal principle of presumption of innocence.

 

Lord Young of Norwood Green  also stated that the subscriber must pay for lodging the appeal ( see additional info on this in TechEye ) . 

He confirmed that the payment is required in order to prevent mass appeals.

 

Those iptegrity.com readers who have followed the EU Telecoms Package will understand that this is an important point, and that the final outcome of the Telecoms Package, whilst it did not contain the words 'judicial ruling', did specify that  Member States must guarantee the presumption of innocence, and right to a fair and impartial hearing prior to any sanction being applied.  It is unlikely that an 'out-of-court settlement with a possibility to choose to pay to lodge an appeal, will comply. Therefore it would appear that the UK proposal will be in breach of EU law.

 

He also  mixes up an audit trail, with evidence  - the two are not the same.  At the end of his answer, Lord Young of Norwood Green  gives the real position. This is not a court - bringing everyone to court will be expensive and slow and cause unacceptable delay.

Lord Whitty (Liberal Democrat) questioned why the government are setting up a new tribunal system and a process which is separate from what applies to other aspects of copyright law (or indeed, any other law - Ed.).

Lord Lucas (Conservative) said it amounts to ‘straightforward legal blackmail’: " In a civil procedure on a technical matter, it amounts to blackmail; the cost of defending one of these things is reckoned to be £10,000. You can get away with asking for £500 or £1,000 and be paid on most occasions without any effort having to be made to really establish guilt."

 

 

Here is the statement from Lord Young of Norwood Green explaining why the government thinks that a court hearing is not required for  people accused of copyright infringement on the Internet:

These amendments [he is referring to amendments proposed by the Liberal Democrat and Conservative peers - Ed] essentially propose that there should be a judicial ruling before any action under the technical obligations is taken. We of course accept the need to ensure that people's rights are protected, but we believe that the appeals arrangements in the Bill do this. In practice, this means ensuring that the process is based on very firm evidence-I have previously stressed the point about having a clear audit trail-and that there is a clear and accessible way for subscribers to appeal, should they feel that they have been identified wrongly.

I stress for the benefit of my noble friend Lord Whitty, whom I am pleased to see back in the Chamber, that I have already confirmed that it is our intention that the full appeals process should be exhausted before any technical measures are imposed on a subscriber-that was one of his major concerns, and I give him an explicit assurance on it. That means that, if a subscriber considers that the measure should not be applied and chooses to appeal, they will have the opportunity to have the appeal heard by a First-tier Tribunal, which is a judicial body, before a technical measure is imposed. Given those rights that we have identified, the fact that the appeals process has to be exhausted before any measure is applied and the fact that the appeal will be heard by a First-tier Tribunal, which is a judicial body, I do not believe that there will be a backlash. I say to my noble friend that the whole process is about ensuring that we educate and change behaviour before we arrive at that point. We have talked about the initial letters bringing people's attention to obligations of which they may not be aware.

 

As regards the point that my noble friend Lord Whitty made about a court hearing, there is a real danger of moving more people into the courts system than we need to if we take that road. We want a fair, open and transparent process. We do not want to impose any technical measures until we know whether the initial obligations about which we have talked will succeed or fail. In the event that they fail, we want to ensure that, as I said, we exhaust the appeals procedure and keep people out of the courts.

I know that this is a measure that my noble friend Lord Whitty considers to be fundamental, but I do not think that it is appropriate or practical. On the surface, requiring a court to make the decision whether or not to apply technical measures may seem a reasonable safeguard for consumer interests; certainly we have a duty to ensure that the position of the ordinary subscriber is properly protected. However, in practice, we believe that this would be slow, cumbersome and expensive,

26 Jan 2010 : Column 1335

causing unacceptable delay when speed is needed, and probably causing additional stress to subscribers-after all, a court ruling is no small thing. It would also risk putting a burden on the courts. We believe that we have established a procedure that is open, transparent and fair. It ensures that the full appeals process is exhausted before any technical measures are imposed on a subscriber and that, when they make their appeal, it is heard by a First-tier Tribunal, which is a judicial body, before any technical measure is imposed.

 

Link to Hansard 

More from the Lords in Techeye

 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Digital Economy Bill: Minister admits it's graduated response

http://www.iptegrity.com 31 January 2010