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Digital Economy Bill [HL]

I shall speak to Amendment 166 as well. Amendment 161 tries to beef up paragraph (b). It looks at not just the efficacy of the technical measure—in other words whether it will bite—but also the proportionality and objective justification for it. It introduces something of the subscriber’s point of view as well as considering the copyright owner’s point of view that is in the current wording, to make sure that we are treating our citizens in a justified way. That is echoed in Amendment 166, which asks us to make sure that, ""measures that OFCOM recommends are compatible with the Human Rights Act 1998, show due respect for the principle of presumption of innocence and the right to privacy, and guarantee a prior fair and impartial procedure"." We have been over this track a bit and I hope that each time we revisit it we get closer to understanding what will really happen. I had a very helpful letter this morning from ACS:Law Solicitors which, combined with what the Ministers were saying on the last occasion we discussed this, leads me to a greater understanding of their reluctance to deal with the practices that ACS:Law Solicitors is pursuing. They expect these practices to become standard. They expect this to be the way that our citizens will be treated. If people fall foul of this Bill, they will have a couple of warning letters, but after that they will get a typical ACS:Law Solicitors standard letter saying, "Pay us £500 or we will take you to court". If they do not pay the £500, they will end up in court, there will be technical evidence against them, and they will have no ability to provide a technical defence. That is the difficulty that people faced with ACS:Law Solicitors have at the moment. There is this inequality of arms. They are in a civil court, with a 50:50 balance-of-probability judgment, and must contemplate risking thousands of pounds in mounting a defence when it is not easy to do that. We should think extremely carefully before we make it acceptable for mainstream copyright owners to pursue this sort of course because we have talked it through carefully and have sanctioned it in the Bill. This is not a comfortable or pleasant procedure for people. Thousands of people feel that they have been done in by ACS:Law Solicitors. They have been unjustly accused and are finding it extremely difficult to satisfy ACS:Law Solicitors that they are innocent. These things rarely seem to come to court. None the less, the process appears to be entirely within the recognised arrangements of the law, and there is as yet no sanction or judgment against the practice from the SRA or any other organisation. We must accept that tens of thousands of citizens are going through this experience at the moment, and that hundreds of thousands or a million or more citizens will do so once the Bill is passed. This is producing extreme worry and unhappiness because of the lack of ease in dealing with it. As the Bill goes through Parliament, we really must decide what is proportionate and reasonable and how we balance the interests of copyright owners with our duty to our citizens to ensure that they are not put in fear and made to worry over something that they find extremely difficult to comprehend or defend themselves against. They have a deep feeling that they have been wronged because they know that they have not done what they are accused of. The Government have not got the balance right, and the amendments suggest how we might start to tackle this. Somewhere in the Bill there must be a real understanding of the need for balance between copyright owners and citizens and that this is not a matter of heinous and absolute liability, such as sticking a knife into a person. This can be done unawares and can be extremely difficult to tackle in court. I beg to move.