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Digital Economy Bill [HL]

My Lords, the intention behind the proposed new clause is clear and easy to sympathise with: to give subscribers more information and hence protection. However, it attempts to do so by placing new obligations on Ofcom in areas in which Ofcom does not have the necessary expertise or experience. In doing so, it would actually reduce the level of subscriber protection. I will say why. We agree that advice should be made available to subscribers on how to secure their networks, but the best people to give it are the ISPs, which can advise on what works best on their network, using their hardware, and on the type of service that they provide. I stress that we are introducing an amendment to the Bill that requires that they do so under the code. Any advice from Ofcom would be second best. However, it will be up to the appeals body, the First-tier Tribunal, or indeed a court, to decide what precautions or evidence may or may not be appropriate. In a lot of the information that we have sent out, we have said what we think would be a reasonable defence for people adopting security measures. I will have to come back to the noble Lord, Lord Lucas, on the question of security on routers and so on; I do not feel capable of giving an answer here. The danger in Ofcom setting out its views on what measures are "reasonable" or what evidence might be produced is that these could become the de facto minimum for subscribers, regardless of circumstance or effectiveness. The level of technical expertise that is required—for example, to demonstrate that at no time did the subscriber’s computer have the necessary software to allow infringement—is fairly high and expensive, although it is easy to envisage circumstances in which this would be totally unnecessary. In such a fast-changing area, any centrally provided advice that tried to cover all eventualities could very quickly date. Conversely, a court or tribunal might simply take the view that the measures were unnecessary or inadequate and not take them into account. We agree with the intent behind these amendments, but, as I have explained, we feel strongly that they are not necessary and that, for once, Ofcom is not best placed to provide the advice. There are a number of reliable and credible sources of advice on protecting networks on computers outside the ISPs, such as www.getsafeonline.org, which provides independent advice on how to protect networks and is supported by government, Ofcom, the police and industry. Organisations such as Which? also review widely available security products. I will still take away the point made by the noble Lord, Lord Lucas, about routers, which apparently are not secure. He asked whether software programs could in any way be downloaded to make them secure. I do not know. We understand exactly and sympathise with where the noble Lord, Lord Lucas, is coming from, but we do not believe that this is the right way to proceed. We believe that the ISPs and other sources will be better placed to give this kind of advice, and I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.