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Digital Economy Bill [HL]

We now turn to the threshold that applies to the obligations code. This threshold is even more important than the one we debated a couple of groups ago, to which the Minister agreed, since it governs how many ISPs these provisions will fall on. The threshold that is eventually decided on needs to be clear and proportionate and should represent a sensible division between ISPs which have, knowingly or unknowingly, become major carriers of unlawful material and those who have nothing to do with the entire business. The Government’s insistence that there will be some cost involved for ISPs which fall above the threshold makes it all the more important to ensure that a small ISP which is not involved in any meaningful peer-to-peer infringement is exempt from the code. The burden of complying, for such a small potential effect on illegal file-sharing, would simply not be proportionate or justifiable. This matter is further complicated by the new information that different provision as to costs might be made for different types of ISP. Will this distinction be replicated for thresholds? Will the Minister give us more information about the types of classes that different ISPs will fall into? This relates to Amendments 87 and 197, tabled by the noble Lord, Lord Clement-Jones. We have recently been given more helpful information about the type of organisation that might be classed as a communications provider, and the steps that the Minister expects it to take to restrict peer-to-peer sharing. The note builds on the unsatisfactory and surprising response of the Minister to the amendment of the noble Baroness, Lady Miller, on communal networks. All his suggested measures to block file-sharing sites, ban particular protocols and limit the amount of band width would have an impact on legitimate users, as well as being difficult to keep up-to-date and effective against copyright infringement. This might be a good moment to remind the Minister that file sharing is not illegal, and nor are the necessary protocols to make it possible; and that band width, even for uploading purposes late at night, is often useful for many reasons other than copyright infringement. Expecting institutions founded in many cases on the principle of open access to information to restrict, monitor and police what could be thousands of users of a network to such an extent is surely not feasible. The Minister’s disregard of the value to certain institutions of maintaining an unrestricted online connection was surprising and unappreciative of the needs of many legitimate users of the internet.