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Digital Economy Bill [HL]

I will take Amendments 65 and 70 together, since they propose similar changes to the Bill. The purpose of these amendments is to add further required information to notifications sent to subscribers if they have been alleged to be infringing copyright online. This further information would be how the subscriber can respond to receiving such a notification of an alleged infringement and how they can appeal if they believe the notification to be based on an error of fact or law, or is unreasonable, and the potential consequences of continued infringement. Noble Lords will have seen from the draft outline initial obligations code that we have provided that it is intended specifically to address this point as one of the points that a notification would cover. However, I would make a strong plea for some flexibility here. In particular, it seems to me that we would be very well advised to give as much encouragement as we can to the initial communication on this being couched in terms of friendly advice. Most people will not need much persuading to swap infringing behaviour for legitimate activity, and there is much to be said for maintaining good relations with them while making sure that they get the information that is needed. Of course, as the legislation requires that an appeals process should be set up, it would not be conceivable that in practice notifications would not contain information on how to appeal. I reassure noble Lords that that will be part of the notification. I stress the importance of getting that first notification right. We are about persuasion and getting people to recognise that they can deal with this, and we do not want to err too much on the side of the stick being applied at this stage. An appeal process is obviously essential. Internet service providers will certainly not want to clog up their response centres with people trying to get information about notifications when there is a simple way of channelling them to where the information is. The information about consequences is also provided for in the amendment, but I do not think that it should be mandatory. There may well be value in including such information and making it plain in a second or subsequent notification but, as I say, there may also be value in keeping the first notification friendly, and I see no reason for blocking off that possible flexibility. It does not take away the importance of the right of appeal. The possibility of including such information is therefore already in the Bill, and I urge the noble Lord to withdraw the amendment. Amendment 66, tabled by the noble Lords, Lord Howard and Lord De Mauley, and the noble Earl, Lord Erroll, would require notifications sent to subscribers to include information about the possible imposition of technical measures. For reasons that I have outlined in relation to the other amendments in this group, it may not always be appropriate to include such information. This is, after all, relating to the notifications to be sent as part of the initial obligations, when technical measures will not be in force, and which we hope will not in fact be needed. There have been a couple of analogies, one of which was parking fines, which is not appropriate. We are not going to hide anything and we are not seeking to fine people when we send the first letter. I preferred the analogy by the noble Lord, Lord De Mauley. If it got to the final demand, in red, which he rightly said rather like hanging tended to concentrate people’s minds wonderfully, of course it might well be appropriate at that stage to include the technical measures. We are saying that a lot of this needs to be clearly defined in the code. As such, it may be something that the code decides would be appropriate for a subsequent letter but not for the initial notification, where it is to be expected that the tone will be more courteous and the emphasis more on preventing such a thing happening again and indeed on assisting subscribers in ensuring, if it was something that was done without their knowledge, that it would not happen again. They may be individual subscribers or, as the noble Lord, Lord Clement-Jones, said, communal subscribers. We issued a paper on measures that could be taken by community subscribers. I do not know whether noble Lords have had a chance to digest it. We hope that it provides helpful information.