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Digital Economy Bill [HL]

My Lords, new subsection (4)(b) allows the Secretary of State to direct Ofcom to carry out an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service. Amendment 161 would add "proportionality" and "objective justification" to the assessment. While I have sympathy with the view that these are important criteria, I do not think it is necessary for Ofcom to do this because they are points that the Secretary of State will have to consider as part of the decision whether to make the order to impose technical obligations, and on what terms. On the other amendments in the group, new subsection (4) in Clause 10 sets out the steps that the Secretary of State might particularly direct Ofcom to carry out as part of conducting an assessment of whether technical obligations should be introduced, or taking steps to prepare for them. As such, it identifies the main things we consider it will be important should be done: proper consultation, an assessment of measures which would work and early preparation of a code. We are not suggesting that these are the only things that the Secretary of State might ask Ofcom to do as part of making an assessment, nor yet all the things that Ofcom would expect to include in an assessment in order to do it properly. I do not think it would be helpful to try to do that. There is also a risk of duplication here. For example, the issues raised in Amendments 162 and 163 are likely in any case to be captured under the existing reference to an assessment of efficacy. So while there might be much benefit in the Secretary of State asking Ofcom to consider these and other issues, I do not think that they need to appear in the legislation. I hope noble Lords will take that into account. On the much-discussed and debated ACS:Law, I am glad that it has at least been reported to the SRA but regret that no action seems to have been taken to date. I am not sure whether I have fully understood the point made by the noble Lord, Lord Lucas. I thought he was welcoming the Bill in that our process might well be described as taking a graduated approach. In the first instance, people will be sent a letter saying, "It appears that there has been an infringement. If it has been done unwittingly or by someone else, here is what you can do to remedy the situation". We are laying down what I think is a proportionate, reasonable and fair procedure. We have to ensure that it is all reflected in the code and that we build in all the rights of appeal and so forth, as we have discussed in our debates here in Committee. We like to think that that will influence the process that will eventually end up in the courts; that is certainly our presumption. I repeat my assurance to write to the Ministry of Justice. I stress that so far as we are aware, firms are operating within the existing legal framework, a point which to a certain extent was confirmed by the noble Lord, Lord Lucas. It may not be a procedure that everybody likes, and in some cases I presume that people have been guilty of the offence, but we are saying that this Bill cannot be the vehicle to deal with it. As we have said, it provides a graduated response that seeks to change the culture and the behaviour. I am glad that the noble Baroness, Lady Howe, is with us at least in principle and thus is in favour of proper compensation—that is what we are trying to achieve. The noble Lord, Lord Howard, asked about the costs to internet service providers. We share his concern because this has to be something that they are capable of dealing with and does not undermine their normal operating procedures. The costs associated with any technical measure will therefore be the subject of a separate statutory instrument and a new or revised code. All this will be subject to scrutiny and I take entirely the noble Lord’s point that we keep control of it. The noble Lord also talked about a rush to implement necessary steps. We are not going to rush this, and I hope that a future amendment will demonstrate our response to concerns that sufficient time is provided to see whether the first set of technical measures has had an effect before contemplating the need for further ones. We shall come back to that. I listened carefully to what the noble Earl, Lord Erroll, said about the law of unintended consequences, but I do not think that we are in any way likely to stop legal markets operating overnight. There was a presumption that, assuming we did catch 700,000 people in our first attempt, all of them will carry on with their misbehaviour—assuming that they are misbehaving. I do not take that view; I think that we will be able to change them. If we want to introduce some balance into this debate and an overall assessment about what we are trying to do, then I thank my noble friend Lord Puttnam for doing just that. These are not just minor infringements, and they apply not only to music, and as my noble friend Lord Puttnam knows, because films are also very much affected by them. I quoted a case the other day in which the film "Avatar", on the very day that it was released, was downloaded, including the 3D version. We should not kid ourselves that these are just minor downloads of the odd piece of music.