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Digital Economy Bill [HL]

I intend to speak to the six amendments tabled by my noble friend Lord Mandelson which deal with the thresholds set by the code. I shall also speak to Amendments 36, 37 and 40, tabled by the noble Lords, Lord Razzall, Lord Clement-Jones and Lord Whitty, and the noble Baroness, Lady Miller, which also address the thresholds that apply in Clause 6. Perhaps the most important of the amendments laid by the Government in this group has the effect of removing the text that caused some concern to noble Lords during both Second Reading and Committee. The concern was about whether it was fair or reasonable to require internet service providers to process copyright infringement reports that accrued to them during the qualifying period—in other words, before they were formally subject to the obligations. Internet service providers put forward the scenario of being obliged to spend significant sums just in case, at some time, the obligations did apply to them. This would in many cases be likely to be wasted money. Clearly that is not in anyone’s interests, and the amendments allow for the obligations to apply from when the qualifying threshold is reached, or from a later date. The other amendments in this group are largely intended to clarify the position regarding thresholds, including how the thresholds for going on the copyright infringement list might be constructed—for example, allowing for time as well as simply the numbers of copyright infringement reports to be taken into account when looking at thresholds for adding subscribers to a copyright infringement list. These amendments are again in response to the concerns expressed during our deliberations in Committee, and I hope that noble Lords will agree that they address one unintended consequence and provide greater clarity elsewhere without hindering the important flexibility that the code provides in setting the thresholds themselves. Amendment 36 was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. I understand their intention of ensuring that the level of infringement detected on an internet service provider’s network must be serious before it becomes subject to the obligations in the Bill. It remains our view that the code is the right place for the threshold to be established. I believe that we can rely on the parties with the most interest in getting this right and on Ofcom, as an experienced regulator, to agree a suitable threshold. That is also our view of the amendment tabled by the noble Baroness, Lady Miller, and my noble friend Lord Whitty. I do not think that we would be at all wise to include specific figures for any threshold in the Bill; that is for the code. In passing, I would say that if a threshold of 50 is included, there might be few internet service providers left outside the scope. Whether that is desirable and effective I am content to leave to the code. Finally, the noble Lords, Lord Razzall and Lord Clement-Jones, suggested that once the threshold has been reached a reasonable time should be allowed for internet service providers to prepare. I agree that this needs to be part of the practical arrangements. Your Lordships will therefore not be completely surprised when I suggest that this sort of practical detail is best left to the code. The outline that we made available in Committee included that eventuality. In trying to put more flesh on the bones of what the code may look like, we think it important that, while not taking away flexibility, we provide a period of consultation for stakeholders to decide the make-up the code. I am sure that noble Lords noted that Amendment 39 allows that internet service providers comply with the obligations once they have passed the threshold or at a later time. This was included specifically to cater for the likely but not certain need of many internet service providers to make the necessary preparations. We took into account many of the comments and concerns expressed in previous debates and they have been reflected in the government amendments. In the light of those comments, I hope that noble Lords will not press their amendments. In the mean time, I beg to move.