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Digital Economy Bill [HL]

As ever, the voice of reason. Following the debate during our second day in Committee on the subject of what constitutes a reasonable defence, I wrote to all noble Lords who had indicated an interest in this aspect of the online infringement of copyright provisions, recognising that this is of crucial concern. It is of fundamental importance that what we do here is fair, proportionate and transparent to subscribers who may become the target of the measures allowed either under the initial obligations code or, should it come to that, the technical obligations code. I hope that my letter clearly set out the Government’s position. If a subscriber takes all sensible measures and—should he be notified under these provisions—shows that he has done so, that should provide him with a good defence for the purposes of the Bill. The noble Lord’s current amendment goes rather further than that, and I do not think that it would prove workable in practice. First, Ofcom will not be prescribing measures. The notification sent to subscribers will contain information that will help them to protect their privacy and prevent them inadvertently being the means of online copyright infringement in the future. However, I would not characterise this as Ofcom’s prescriptions. I would, in any case, hesitate to include anything that affords a complete defence when it is dependent on the individual interpretation of generic advice. I would much prefer to leave this to the independent appeals body to take a considered and sensible view of what any appealing subscriber has done to prevent infringement. Of course the sort of measures set out in the notification, as well as other commonly available measures, are likely to be highly persuasive in this judgment. However, I would rather leave room for the appeals body to make the judgment. Indeed, we do not prescribe the decision. In the light of my earlier letter setting out the Government’s view on defences and the impracticality of prescribing measures, I do not think that this amendment is necessary or practicable. I hope the noble Lord is reassured about the seriousness with which we take subscribers’ ability to mount a reasonable defence after taking reasonable measures and that he will agree to withdraw the amendment.