---

Digital Economy Bill [HL]

My Lords, I will first remark on Amendments 118 and 189, in answer to the noble Lord, Lord Clement-Jones. These amendments aim to make it completely clear that it is the copyright owner who should prove that the infringement of the copyright took place. I absolutely agree that that is where the burden of proof lies. The copyright holder must be able to substantiate that if the whole process is to have real credibility. There is no difference between us in that respect. I appreciate the intent behind the amendments and certainly agree that it is important that the position of the subscriber is protected. However, we do not think that the amendment is necessary. The point to be remembered is that the copyright owner will have already provided the evidence that will form the basis of the copyright infringement report. It will be for the appeals body, and the First-tier Tribunal where appropriate, to assess that evidence, assuming that there is an appeal, against the counter arguments of the subscriber. It will then decide whether to uphold the appeal or not. That seems perfectly fair to me. I reassure the noble Earl, Lord Erroll, that we have no intention of making the appeal scenario one in which people cannot afford to appeal. We said in a previous contribution that we intend this to be a modest cost merely to deter what we might describe as frivolous appeals. If the subscriber is successful, the money will be refunded anyway. Certainly, we agree with him that the regime should not deter perfectly innocent subscribers from receiving justice. Similarly, Amendments 119 and 190 would ensure that the cost of any such appeal was borne solely by the copyright owner. I suggest that it is right to leave decisions on who bears the cost to the statutory instrument that will be issued as a result of Clause 15 of the Bill, which deals with the sharing of costs. A number of noble Lords have referred to this and I was asked to justify the figures. I make a plea to noble Lords not to get bogged down in the debate about 75:25 and whether it should be 60:40 or whatever. It is a working assumption. The proportion is not an exact science—we are not claiming that. We are clear that the costs should be shared and that the bulk of the costs should sit with the copyright owners, but there is merit in hearing the views of industry and others in the consultation. The argument about why ISPs should bear any cost is threefold. It gives them an incentive to minimise the cost of sending notifications—here I am addressing the concern expressed by the noble Lord, Lord Clement-Jones—it provides incentives to take voluntary measures to reduce online copyright infringement and thereby reduce the number of notifications that an ISP might have to process and it provides incentives to participate in commercial offers under which a bilateral agreement could reduce the number of notifications that they receive. We do not expect to be involved in costs in relation to mobile operators because we doubt that there will be enough infringements to breach the threshold and to fall inside the scope of this provision. That is our current assessment. The noble Lord shakes his head. If he has any more accurate information, we would be delighted to receive it and to respond accordingly. The noble Lord, Lord Howard, asked about a subscriber who had taken defensive measures. In the easiest case, if they had taken defensive measures we assume that there would be no more allegations against them. A worst-case scenario might be where they had taken the measures that they had been advised would be sufficient to defend them, applying a range of software, and were able to demonstrate that they had done so, but somebody had still managed to infiltrate their network. We are clearly talking hypothetically, but we have ranged over what is a reasonable defence more than once in Committee and we have tried to give a reasonable assurance on this. We do not think that the statutory instrument’s ability to apportion costs should be constrained where it is deemed fair and appropriate. The draft that we provided shows that we envisage that it might include a contribution from internet service providers. I have given the reasons why. There is a legitimate argument about whether the appeals process should be entirely free to the subscriber, or whether there might be a refundable fee to deter frivolous appeals. As I tried to reassure the noble Earl, Lord Erroll, it would certainly need to be accessible to all, which might well argue for the appeal to the appeals body being free to the subscriber. That is for consideration in light of discussion of Clause 15 and the accompanying draft statutory instrument. In light of those explanations and assurances, I invite the noble Lord to withdraw the amendment.