Human Rights Committee questions Digital Economy Bill compliance with ECHR
Posted by scott on February 5th, 2010The UK parliament’s joint committee on human rights have published a report criticising the government’s attempts , through the Digital Economy Bill, to tackle illegal file-sharing. They say the bill – as currently drafted - may create over-broad powers, and that some provisions in the Bill are not specified in enough detail to ensure that they will operate in a way which does not risk a breach of individual rights.
The committee looked at the bill and the Explanatory Notes and Human Rights Memoranda. The Committee points out that The Explanatory Notes to the Bill provide a basic explanation of the Government’s view that the Bill is compatible with the European Convention of Human Rights (ECHR) and that the supplementary Human Rights Memorandum accurately identifies a number of relevant human rights issues. However they found that the substance of the analysis in the memorandum adopts practices they had previously criticised – namely relying 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. “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. 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.”
Copyright infringement reports
The Committee find it unlikely that the issuing of such report by ISPs will result in a significant risk of a breach of individual internet users’ pivacy rights although they still call on the Government to provide a further explanation of why they consider their proposals are proportionate 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. Here they were referring in particular to the lack of detail about the process provided on the face of the Bill re: a legal limit on the circumstances in which an ISP will be required to disclose a copyright infringement list – how many ‘alleged’ infringements and over what timescale.
Technical measures
The Committee correctly identify that meat on the bones in these proposals in missing from the bill and state that they do “not believe that such a skeletal approach to powers which engage human rights is Appropriate” They find 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.
The Committee point out that the entire technical measures mechanism will be created by a combination of secondary legislation and the “technical obligations code”. This means that a number of key features are undefined or extremely broad. They say it is all very well for the Government to say that individual copyright holders will provide evidence and will only seek sanctions against “serious infringers”, but neither of these things is outlined in the text of the Bill and that the standard of evidence expected or the standard of proof to apply has also not been clearly explained.
In their view the government still needed to address the following:
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?
The Committee recommended 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.” Interestingly the government has already rejected proposed Lords’ amendments that covered just these things.
Right to a fair hearing
The Bill provides for provisions for appeals in codes, however the committee identifies 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. The committee recommends “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.”
Clause 17
The Committee has particular concerns about the new power in Clause 17 that allows for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. This provision that has been the subject of much criticism, and lead to government amending the text of the clauseto limit the power and to use the special ’super-affirmative’ procedure to ensure that any proposed changes would be better scrutinised by Parliament.
The Committee remained concerned that, despite this (then promised) move that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate, and the government 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.
In essence the Committee are not yet convinced that these parts of the bill do stand up to the government’s assertion that the bill is in full complaince with the ECHR. They also highlight a fact mentioned by many of the Lords’ in recent proposed amendments - that the detail of the bill is being sidelined to codes and SI’s instead of guarantees being made in the primary legislation: a trick this government has excelled in - see the Regulation of Investigatory Powers Act for a fine example of this.
Will the government listen? Probably not. They may, at some point, sacrafice clause 17 if it looks like doing so will guarantee the bill getting on the staute books before the election. Indeed a true cynic might argue that its place in the bill in the first place is designed purely to be a bargaining chip to ensure other measures get through mostly unscathed. We shall see.

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