As Twitter and ORG resders may know, I'm meaning to write some kind of interim summary of what the Committee stage in the House of Lords has "fixed" in the Digital Economy Bill with respect to the file-sharing and copyright provisions (A: not a lot) and what still needs urgently brought up at Report Stage and if necessary all the way to and through the Commons (A: an awful lot). This despite the best efforts of some exceptionally knowledgeable and persistent Lords, including though not limited to Lord Lucas, L. Howard of Rising, Lord Clement-Jones and the Earl of Errol.
However it seems my job has possibly been done for me - by the Lords' own Human Rights Joint Committee. Their executive summary makes very, very interesting reading and is worth quoting in full:
The Digital Economy Bill has been introduced to update the regulation of the communications sector. Due to time-constraints we focus on a single issue in the Bill: illegal file-sharing.
The Bill establishes a mechanism whereby holders of copyright will be able to issue a 'copyright infringement report' to an ISP where it appears that the ISP's service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account. The ISPs will also be required to maintain a list of account holders who have been the subject of such reports.
We consider that it is unlikely that 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). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.
The Bill provides for the Secretary of State to have the power to require ISPs to take "technical measures" in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.
We do not believe that such a skeletal approach to powers which engage human rights is appropriate. 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. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention.
The Bill provides for provisions for appeals in codes. 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. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.
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 process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.
Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. The broad nature of this power has been the subject of much criticism. In correspondence with us, 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. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.
Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns."
Delightful to see such plain and clear and unadulterated good sense. I particularly applaud the second section: "We do not believe that such a skeletal approach to powers which engage human rights is appropriate." Put that on your tee shirt and smoke it.
In the meantime, all kinds of odd and eddying currents are flowing around the whole filesharing mess, here and abroad. In Blighty, we're seeing more and more sectors of industry, like the hoteliers, coming to the realisation of how bad the DEB will be for them as providers of public wi fi to the public; in Europe, the Belgian SABANE case, which imposed an impossible to fulfil filtering obligation on a Belgian ISP in the interests of rightsholders, is going on appeal to the European Court of Justice, with strong backing in evidence from trusted computer industry experts ; and the first Ozzie case on intermediaries and file sharing since KaZaa has been heard, and as with Oink in the UK ,the music industry have done themselves no favours by bringing it (though this case, being civil, includes no room for accusations of perverse juries).
More on all of these to come, I suspect, but on the last, I direct you meanwhile to my colleague Technollama's very helpful comments on the Australian case. From Pangloss, it is bonne nuit.