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Digital Economy Bill [HL]

My Lords, I support the amendment of my noble friend Lady Miller. This has been an important debate because it could have considerable repercussions if we do not get the new clause right. As has been pointed out, there is no reference to the state of knowledge of a subscriber in such circumstances. To treat all subscribers the same as the clause appears to do is extraordinarily disproportionate. I am sure that word will be repeated again and again as we go through the Bill. If the proposed subsection is to remain, there needs to be provision within the clause in regard to the state of knowledge of the subscriber; putting it in the code will not be good enough. Right across most legislation "knowingly" and "having constructive knowledge" are common concepts in legal terminology. A liability which is triggered by a subscriber simply allowing someone to use their service—knowing that they are using it but having no knowledge of the activities engaged in—is well beyond what is acceptable. The general public would not understand it. The idea that everyone will have to guard jealously the codes to their wi-fi systems at home—we all understand there are security issues with the general public passing by in a car, the example used by the noble Lord, Lord Maxton—is not acceptable. Having to treat your wi-fi system within your own home as some kind of fortress when visitors come is grossly disproportionate. Additional language needs to be inserted in the proposed new subsection before it will even begin to be acceptable.