Informationoverlord

An Italian court has found three executives guilty of breaching Italian privacy laws, in relation to a video clip posted on the Google Video site.

The case centred on a mobile video clip of an Italian child with Down’s syndrome being bullied and hit by four school boys, which was posted on Google Video in September 2006 (just as Google was buying YouTube) and removed by Google about a month later following complaints.
Italian prosecutors then decided to file charges against four Google executives: chief legal officer David Drummond, chief privacy officer Peter Fleischer, video executive Arvind Desikan (who was cleared of all charges), and chief financial officer George Reyes. The four were charged with criminal defamation and a failure to comply with the Italian privacy code.

Google denied the charges pointing out that they had taken down the video after being notified by the Italian police, and worked with the police to help identify the person responsible for uploading it (she was subsequently sentenced to 10 months community service), as were several other classmates who were also involved.

Despite this the Italian authorities still felt that it was Google who needed to pay for the ‘crime’. According to the court it was Google’s duty to ensure consent from the person(s) filmed had been obtained, a logic that would clearly end the functioning of just about every video and photosharing site on the web and mean that they and every social networking site, such as Facebook would need to vet EVERY item submitted by their users and individually clear or reject each time before allowing it on their sites. Google themselves commenting on the decision state:. “[If] sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.”

Google plans to appeal and continues to argue that the European E-Commerce Directive (implemented in Italy by Legislative Decree n. 70 (“D.Lgs. 70/2003” or “Decree”) ) provides them with safe habour protection.

Article 14 of the Directive provides –
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
1. the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information

The Directive and the Italian Legislative Decree also state that there is no general obligation to monitor the information which providers transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

One of the main questions in this case is whether or not Google Video was an ‘information society service.’ It would seem that the Court in this case has decided Google – thorough Google Video – was a content provider – no different from an online newspaper, for example, with direct responsibility for all content posted.

This is described in Article 1(2) of the Technical Standards and Regulations Directive (Directive 98/34/EC) as amended by Article 1(2)(a) of Directive 98/48/EC as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

But what does that include? According to the Council of Europe’s Convention on information and legal co-operation concerning “Information Society Services” This covers a wide range of on-line activities amongst which : on-line information services (newspapers, magazines, libraries, electronic databases, research engines etc.); electronic commerce; on-line agencies (of advertising, marketing, teleshopping, tourism, real estate, etc.); professional services provided by electronic means (by consultants, translators, designers, computer experts, etc.); on-line validation services (certification of electronic signatures, authentication, recording, dating, etc.); on-line services to consumers (interactive teleshopping, information on products and assets, purchase tests, research and evaluation of promotional offers); on-line tourist services (information; flight, train, hotel, car, show reservations; virtual visits to museums, monuments and sites); on-line entertainment services; new telecommunications services on demand (videoconference, Internet access, electronic mail, discussion forums), etc.

To most people it would frankly seem clear that Google was providing (in part) an “information society service” by offering Google Video; and that the service provided by Google Video certainly amounted to “hosting.” The question then would be if it had “actual knowledge” of this video – the Italian procesuters said it was top of the watched video’s list for a couple of weeks before the request was made to Google to remove it.

Indeed the prosecutors who brought the case we understandably delighted with the outcome “We are very satisfied because by means of this trial we have posed a serious problem: that is to say, the protection of human beings, which must prevail over corporate interests.” they said in a statement. A sentiment I’d certainly agree with if the decision actually did anything of the sort. Instead it made the rest of the world think Italy doesn’t understand how the internet works or the very basics of law. The guilty parties here were those who took part in, filmed and uploaded the video. They were dealt with - with the HELP of google. That should have been end of story.

If I was any operator of any sort of social network site in Italy now I would be serious considering blocking access to any Italian based users for fear that I could be next.

Could .XXX be coming to an internet domain near you soon? That will certainly be the hope of the ICM Registry following a ruling by the ICANN Independent Review Panel. In the Panel’s first ruling since the process was introduced six years ago the panel ruling 2-1 that ICANN should revisit its decision to refuse ICM’s application for a .XXX domain. The panel found ICANN”s handling of the .XXX application was in violation of ICANN’s Bylaws and Articles of Incorporation, as well as international and California law.

Attempts to introduce a .XXX domain have been going on since 2000 when ICANN first opened up applications for a proof of concept plan to add new generic Top Level Domains (gTLDs). Falling at the first hurdle then, it was back in 2004 as one of 10 applicants as a sponsored Top Level Domain (sTLD). At this time ICM seemed to have some level of support both from those within the industry and those within the US government.

ICANN gave preliminary approval to the domain on 1 June 2005, and then entered into commercial and technical negotiations with ICM. ICANN found itself under intense political pressure to turn down the domain. The US Government, which was initially in favour of the domain changed its position following a number of US family and child protection groups attacking the proposal, and several conservative groups campaigning against the domain due to concerns that it would legitimise pornography. Several other governments also expressed some concern over the domain. The power of the US in this matter was highlighted by the fact that even had ICANN approved the domain, their decision could still have been blocked by the US Commerce Department.

This lead ICANN to delay making a final decision twice. Then in January 2007 ICANN decided to revisit the issue, asking to additional changes to be added to the proposed agreement with ICM and then re-examining the sponsorship criteria in particular whether ICM could still demonstrate that the community the domain was supposed to support, actually supported its creation.

In March 2007 in what looked like the final nail in the coffin of .XXX, the ICANN board once again rejected the establishment of a .xxx top level domain (sTLD). The vote was 9-5 with a single abstention, that of CEO Paul Twomey. ICANN’s official position was that “there are credible scenarios that lead to circumstances in which ICANN would be forced to assume an ongoing management and oversight role regarding Internet content, which is inconsistent with its technical mandate”.

Paul Twomey said the decision was not political. “The heart of the decision today was not driven by a political consideration.” Not many people outside of ICANN – even those like me who were against the creation of the domain [For the record my objection had nothing to do with the concept of an xxx domain , and was more to do with the process for granting domains and the question of whether additional gTLDs and sTLDs of any kind were actually needed. My article ‘ Do we really need more gTLDs?’ Electronic Business Law (2005) 7 EBL 6, 11 explains my thinking at the time.] - were convinced with the arguments put forward for rejecting ICM’s application.

Some inside ICANN also agreed things didn’t feel right. Professor Susan Crawford, stated “I found the resolution adopted by the Board (rejecting xxx) both weak and unprincipled. I am troubled by the path the Board has followed on this issue since I joined the Board in December of 2005. I would like to make two points. First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously as a private governance institution with a limited mandate and should resist efforts by governments to veto what it does”

She added: “We should be examining generic TLD applicants on the basis of their technical and financial strength, and we should avoid dealing with “content” concerns to the maximum extent possible.”

Fast forward three years and the review panel seems to agree that ICANN made mistakes in this case. The key finding was that ICANN’s decision to reconsider the sponsorship criteria, once it had already found them to have been met did not follow its own documented policy. The Panel accepted that as ICANN was bound by a ‘duty to take account’ of views of governments and whilst recognising the government pressure on ICANN was very influential it found it unclear if this pressure was decisive in ICANN reaching its decision pointing out that had ICANN simply yielded to such pressure it could have disposed of ICM’s application earlier.

The panel also found grounds for questioning the neutral and objective performance of the board in that it seems that the ICM registry was held to a standard not imposed on any other sTLD or gTLD applicant - in short one relating to policing content.

ICANN did secure one important victory and that was a ruling that the Independent Review Process, and therefore the panel’s decision is advisory and non-binding, meaning that it does not legally have to do anything about the ICM application. Interestingly the one dissenting opinion totally backed ICANN’s actions and claimed the “majority opinion will undermine the governance of the internet community by permitting any disgruntled person, organization or governmental entity to second guess the administration of one of the world’s most important technological resources.”

What will happen next? Watch this space.

The Odeon Cinema chain has confirmed it will refuse to screen Tim Burton’s 3D version of Alice in Wonderland over the decision by Disney to issue to the film on DVD after just 12 weeks after its Cinema release date (the usual release window in 17-18 weeks). Several other chains across the US and Europe are planning on doing the same. All claim such a move will kill their business. In a world of short-termism any chain who decides not to take a stand there looks like being a good opportunity to make some extra money on additional screenings of the film though.

Disney’s reason for the shortened window are certainly to do – in part – with piracy fears. It only takes one copy to get online (and it will) so this is a concern that should be immediately dismissed, and the less time and money the entertainment industry wastes trying to stop something that is impossible to stop the better for everyone [ And I’m sorry but all the ‘piracy’ ads talking about bad copies with people walking in front of the screen etc … most copies online are original screener copies that are faultless, not copies made by some Muppet with a camcorder].

According to Disney they are not planning to move to a 12 week window across the board although Odeon believe even doing it here opens the door for studios to do just that.

“The negative impact on cine¬ma attendance that such a reduction in the window will have will threaten the continued existence of many cinemas, especially the smaller and medium-sized cinemas,” a representative from Odeon said in a statement.

I have to say I’m with the good doctor, Mark Kermode, on this issue in the wider context. If the studio’s really want to reduce piracy (and it will never be totally eradicated because there will always be people who want things for free) then the logical end-game for all film releases is simultaneous release: Cinema, DVD/Blueray, Online.

People will stop going to the cinema some might argue – and indeed Odeon do. I’m not sure where the evidence for this is. Are people going to suddenly stop going on dates? Not only that, but I can buy alcohol and drink it in my own house, I can buy food and cook it – quite well if I do say so myself - in my own house, does this stop me actually drinking in Pubs or eating in restaurants? No. Why? Because the experience is different.

Seeing a film on the big screen is still a special experience that can’t be replicated at home even with the best home cinema. Seeing a film in a packed cinema – watching people jump at scary moments, laugh out loud at funny moments and being taken along by the reactions of the others around them is impossible to replicate at home – it’s the same reason why we always laugh more if we go and see a comedian live than we would do if we had sat at home watching a recording of that same routine. In fact, how many times have you seen a film on the big screen and then seen it on DVD and felt let down that it didn’t seem as good on the small (relatively speaking) screen? Or vice versa, one you didn’t rate at all on the big screen that somehow doesn’t seem quite as bad on the small screen?

How many times have you gone to see a classic film at the cinema? Maybe a screening of ‘It’s a Wonderful Life’ at Christmas, a screening of the Star wars films/ Star Trek films, Laurence of Arabia etc. Why did you go if you can just sit at home and watch it on TV/DVD? You went for the Cinematic ‘experience’ and to see the film how it was meant to be seen.

An additional advantage of simultaneous release is that it might reduce the amount of people who show up to the cinema and are apparently incapable of going two hours without the need to hold a conversation with the person next to them – regardless of whether it’s about the film or not.

A number of reports appeared last night – such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate – although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

I see the Newspaper Publishers Association (NPA) has started moaning to the BBC Trust (and plans to also moan to the DCMS) about the Beeb’s plans to launch phone apps for its news and sport content later this year. The reason? It would “damage the nascent market” for news apps.

Really? I’m not buying that as an argument.

I used buying to describe this as I suspect that is the real reason for the NPA’s objection. Whilst the Newspapers look to erect pay walls for their content they don’t want the Beeb coming in and offering theirs for free on yet another platform. They’re already the elephant in the room as far as charging for online news goes as it is. If the apps and or content are remaining free then i don’t see what the argument is. Money can be the only reason.

I look at the BBC site daily from my iPhone. I don’t need an app, although one that improved the experience would certainly be nice to have, I don’t deny. However, I also look daily at content from my Guardian and Daily Telegraph apps (I ditched the Independent’s one because it is such a crap app that it was a waste of time to use - and I say this as someone who actually buys the Indy every week day in good old fashioned hard copy).

It is not an either or option for me (as least not until I’m being asked to pay for access) and nor is it likely to be for most other people - unless they already don’t engage it the news, and for them the absense of a BBC news app wont make them any more likely to start using the Telegraph app or the Daily Mail app.

The NPA and its members - like those in commercial radio and TV - should spend less time moaning insesently about the BBC (yes, sometimes it does step over the line) and more time working on offering compelling alternatives. I sometime think if it didn’t already exist the likes of the NPA would have to create the BBC just to give themselves someone to moan about.

Google’s attempt to get in on the social media updating and sharing space continues to make news – not least of which a couple of lawsuits that accuse Google of serious privacy law breaches.

I personally really want to like Buzz, honest, I do. I can also see how it could become both good and useful. But so it is easy to look at the whole exercise as a lesson of how to really fuck something up. Then again this also maybe too simplistic a view. Around 32 million Gmail users got Buzz a couple of weeks ago and registered over 9 million Posts and Comments within its first couple of days according to Mashable. These are not numbers to be sniffed at. If it keeps up those kind of numbers then even the moans of the like of me and other ‘geeks’ won’t stop this from making a big splash.

But, I do have some further moans.

Profile: ‘ a concise biographical sketch’ (Merriam-Webster Online Dictionary)

Google has now added a tab within the Gmail settings where users can choose to not show Google Buzz in Gmail, not display those who they are following and those who are following them, and also an option to totally disable Buzz. Now this final option ” will disable Google Buzz in Gmail and delete your Google Profile and Buzz posts. It will also disconnect any connected sites and unfollow you from anyone that you are following.”

Yes, whilst you may have had a Google profile set up long before Buzz arrived – I did - they are now apparently as inseparable and IE and Microsoft’s OS’s of old. If you want to keep your profile, you have to keep Buzz. Wrong, Wrong, Wrong, Wrong, Wrong. Add to this the default view for anyone visiting your profile is now any ‘buzz’ content you may be sharing, not the ‘profile’ information (no choice in this – and we now know Google doesn’t really think about choice when it comes to Buzz).

Mobile Access

I can’t use the mobile version. Why? Mainly because every time I try and post and despite my clicking on ‘don’t allow’ when https// m.google.com asks that it ‘would like to use your location’ Buzz still insists on doing exactly that if I do post. This is despite it also saying ‘Location is not available’ when presenting me with the IU for posting an update.

Don’t get me wrong, I have nothing against location updates – great for when at restaurants, pubs, sights etc, and when the choice is mine, BAD when it is Google trying to tell people where I am when I have already said no, don’t and when it’s service itself has lead me to believe it is honouring that.

This is a shame as it is here when coupled with Google maps integration etc that this could be a really useful tool and a serious threat to the likes of Loopt and Four Square.

Turned off

Whilst I haven’t disabled it, I’ve turned off sharing everything in Buzz for now except for any status updates I may decide to make (such as one for this post). Those aside I don’t have enough levels of trust for the product or (simple) control over what I might wish to do with it to use it as is. Amongst friends, I don’t think I’m alone in coming to this conclusion. This may change. Google certainly has the ability and the people to make this work. But I go back to the fact that they bought a product that could have challenged Twitter, Jaiku, and instead of developing it, left it to rot. Buzz could seriously do with a bit more Jaiku in it frankly.

Oh Google. I really want to like Buzz, and if you’d have gone through your usual never ending beta stage we might have forgiven some of your howlers so far …

Google Reader Items

Now you can share and view these in Buzz - as you can within GReader - only with Buzz there is a difference.  Even if you are sharing with a private group - the names of people withi that group are available for anyone else in that group to see - if they have a google profile. All you need to do is click on ‘private’ next to the padlock and there you go - links to everyone in the ‘private’ group’s Buzz’s.

Now again, I’m sure Google don’t see this as a problem and most people sharing the items probably wont either, but again, it would be nice to be asked whether you want this information sharing and if you do that it should be you’re choice not the default to do it.

And so it came to pass that Google decided it wanted to be Friendfeed. Yes, the Gman has rolled out its attempt to get in on some Twitter/Friendfiend/Facebook Lifestreaming action. Are you excited? No, neither is anyone else really. We remember that Google bought Jaiku a few years back, sat on it, did nothing and then stopped supporting it and left it essentially to die. In case you don’t know, Jaiku was the first real challenger to Twitter – and, get this, it was BETTER. No, really, it was. When Google bought it I was one of a number of people who thought that they were going to wipe the floor with Twitter with it. Back then they could have done it, Twitter was still mostly free of celebs and indeed anyone other than web2.0 obsessive’s, but they did nothing.

Then last year Google’s Eric Smidt called Twitter a ‘Poor Man’s Email System’ as opposed one presumed to Google Wave which is a ‘er, sorry but no one is really sure what the hell this is actually for yet system’

The Good

If you already have a Google account and a Gmail account you’re probably going to be tempted to play with Buzz because it’s there, especially if a few of your Gmail friends also take the plunge. It seems to pick up comments made on shared items in Google Reader, which is good. (Not sure whether it does the same on non-google stuff such as Flickr photos though).

Problems

You need a gmail account / google profile to use it. Are any of my friend who are happy with their Yahoo, Hotmail/Live accounts going to switch to Gmail for this? No, they’re not. They have their email and they have Facebook, they don’t need Google Buzz, just like most of them didn’t need Yahoo Buzz when Yahoo tried to do the same trick last year.

It routes everything through your Gmail inbox and doesn’t ask you if you want it there or not. Guess what? I don’t. Thankfully google has already attached the lable ‘buzz’ to things so if you create a filter for content ‘label:buzz’ then all you need to do is look at your buzz icon to see if there are any updates. Much better, but this should be a default option Google.

It needs to support more services if it wants to be a lifestreaming hub.

Seemless

Google is really good at this … oh hang on, no, sorry, I meant awful at this. Let’s take google profiles – can you find yours? I use iGoogle/Gmail all the time and you get a selection of other Google products listed in the top left hand corner as well as a ‘more’ drop down. Is ‘profile’ anywhere to be seen? No. Why not? If my profile is so important, why is this not a fixed link in ANY google product I’m in?

There doesn’t seem to be an iGadget yet for iGoogle. Again, where’s the integration.

What it is really about

Mobile and advertising. Yes, it is really about getting you to login on the move and tell your friends (and Google) where you are. At last Google Latitude may have a purpose. This also pitches Buzz into Foursquare’s back yard. This location info will in turn be attractive to advertisers.

Does it Fly

Yes and No. As with Yahoo’s attempt last year, if you live your life in the email client then there is a good chance that you might find yourself using Buzz, even if you are only using it as a lifestreaming service. Are people, even Google geeks, going to abandon Twitter or Facebook for it, no. Could Google conceivably get them to use buzz to interact with those services – especially for status updates – absolutely.

The 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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