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Digital Economy Bill [HL]

My Lords, I will start with Amendments 104 and 109. The purpose of the amendments is to add a further criterion to the list for the initial obligations code to ensure that proper provision is made for rights of appeal by subscribers concerning notifications and to set out in more detail what that should be. I agree with the noble Lord that protecting the legitimate interests of consumers and providing a clear route of appeal for subscribers who feel that they have been wrongly identified is important and must form an integral part of the system. However, I suggest that this is already properly provided for in the existing text and that therefore the amendment is not needed. Requirement for a person to have responsibility for subscriber appeals is clearly set out in the same clause, at proposed new subsection (4)(c), and is not in need of any further explanation in the Bill. The requirement will have to be reflected in the code, which will include ensuring that subscribers are aware of their rights as well as their responsibilities at every stage of the process. The point was made by the noble Lord, Lord Howard, when he said that the first letter should still have the right of appeal. I absolutely agree with that, because it could be a totally fallacious allegation or there could have been an error and it is appropriate that the subscriber should have the opportunity of correcting that. I shall come on to the question of cost later. It is also essential that we do not attempt to micromanage everything in this process and that we give clear general direction and leave the interested parties under the aegis of Ofcom to work out the details. When we talked about consultation on the construction of the code, the noble Lord, Lord Howard, expressed concern about industry not getting involved. I gave him an assurance that it was "stakeholders", not "stakeholder", and that there would be consumer representation as well. I hope that, under the aegis of Ofcom, we will get the balance right in the code. The way in which Amendment 109 specifies how the appeal process would work sets too many precise requirements and leaves too little room for legitimate manoeuvre. I will give an example. It may be appropriate for a small fee to be payable, refundable if the appeal succeeds. As the noble Lord, Lord Howard, pointed out, you should not be punished for lodging a successful appeal. This would deter mischievous appeals intended simply to delay the process. I am not saying that this is the way in which an appeal system should operate; I just give one example of something that might be considered, which is the payment of a small fee that would not be a deterrent and would be refunded if the individual were successful in the appeal. That would conform with natural justice. I make the plea that we should allow room for the details to be sorted out by the people concerned, including Ofcom, who have a duty to look at consumers’ interests. I will move on to Amendment 106, which was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. Providing information on reducing online infringement of copyright, and on how the Bill is intended to work, would not be of great value to subscribers. Therefore, that is not worth adding. However, the point that the noble Lord made about information, advice and guidance being available to people is a very good one. I will take it away and come back to him on what we are doing. If we are talking seriously about changing behaviours, which is our first approach, that should be part of the educative process. The Bill already provides that the notifications sent will include information about copyright and its purposes and advice about how to obtain lawful access to copyright works. It is difficult to see what more might be needed. As long as the subscriber has the proper information to know where they stand and what they can do about it, there is little virtue in cluttering things up with a description of the whole process. I return once again to the concern expressed by the noble Lord, Lord Lucas, about appeal timing. Details of appeal timing are in the code. Areas of appeal are dealt with in subsection (6). We expect that a subscriber could appeal at any point in the process. In practice, they might be more likely to appeal if they were put on the copyright infringement list, but they might, as the noble Lord, Lord Howard, pointed out, appeal when they received the first letter if they felt that they had been incorrectly identified. I understand that point. The question was raised about whether taking all the appropriate measures that we have advised is a reasonable defence. In our view, it would be a reasonable defence. If the letter tells you, either as an individual or as a communal subscriber, the ways in which you can prevent these infringements from taking place and you undertake all those measures, yet an ingenious hacker finds another way of circumventing them, that is an indication of somebody having taken all reasonable measures and it would be a right and proper defence. In the light of the explanations that I have given, I hope that noble Lords will not press their amendments.