---

Digital Economy Bill [HL]

My Lords, I will speak to Amendments 33, 34, 35 and 76 together. As noble Lords will recall, the issue of libraries, universities and other establishments was the subject of much debate in Committee. We recognised the concerns raised and I wrote to the noble Lords who participated in last week’s debate. I therefore entirely appreciate the intention behind these amendments. No one wants to see libraries or universities the subject of court action or technical measures if—I stress this—they are ever introduced. There is no question of them being some sort of quick sanction which cuts off those services. No one wants to see legitimate businesses suffer as a consequence of the actions of their customers but, equally, it cannot be right that they are totally excluded from the provisions of the Bill. My noble friend Lord Puttnam, with his background in universities, recognised that essential point eloquently during our debate in Committee. It is better that the code recognises different circumstances; that is what the Government’s amendments provide. Such an exclusion would, I believe, be counterproductive. It is important to remember that libraries and universities can and do ensure that their systems are used for the purposes for which they were already designed. After all, it does not help a university to have a lot of unlawful file-sharing going on when it needs the bandwidth for legitimate file-sharing of research data. They sit on infringement pretty hard when they detect it, and install systems to deter illegitimate use of what is, after all, a finite resource. Libraries also take proportionate and reasonable measures on both fixed and wireless connections. All library services should have a conditions of use policy to which users have to agree before getting access to the network. For example, no unlawful activity, including copyright infringement, is permitted. The policy usually stipulates that legal liability for unlawful activities sits with the individual, not the library. There are measures that can be placed on wireless networks to either restrict access to sites or restrict use of certain technologies or protocols—for example, routing all traffic through a proxy server that did not support the use of particular technologies. The Government recognised in Committee that more clarification on these issues was needed. We set out in the amendment that we discussed earlier today that more information should be made available to all types of subscribers on how to safeguard their connections. We proposed a new clause on subscriber appeals, which sets out that if the subscriber was not responsible for the infringement and—I stress—had taken reasonable steps to prevent others from infringing, the appeals body should rule in favour of the subscriber. The amendment tabled by the noble Lord, Lord Whitty, and the noble Baroness, Lady Miller, would go further by requiring that steps that the subscriber could rely on taking should be set out in the initial obligations code. This is just not practicable. The code would be a relatively static document made by statutory instrument. The steps that might be appropriate to protect an internet connection could well change over time as new techniques are developed and may be different for different types of subscriber or different types of network. We absolutely agree that subscribers should have some guidance on what steps can be taken, which is the reason for Amendments 25 and 27 in the name of my noble friend Lord Mandelson, which we have already discussed. These will require ISPs to provide such information as part of a notification and to take into account the suitability of different protection for subscribers in different circumstances. We do not think that it is possible to make following these steps a sufficient defence precisely because different steps may be appropriate for different subscribers. However, I would certainly expect the appeals body to regard evidence that the subscriber had followed steps recommended by their ISP as very strong evidence of having taken reasonable steps. Finally, Amendment 33 would make the inclusion in the code of a provision for dealing with exceptional cases mandatory rather than something that, under the Bill, may be included. I do not think that making such a change is necessary. Of course it is important that the code should be flexible enough to deal with particular cases that do not necessarily conform to the usual pattern. That is why subsection (3) is there. It expressly recognises the need, and the actions that will be required of internet service suppliers and copyright owners, to ensure that any such conditions for dealing with cases of that sort are met. However, I see no reason for requiring such a provision before it is evident that there are such cases. Insisting on such a provision in these circumstances would be a complete waste of time. I suggest that the potential issue of dealing with particular cases effectively needs to be provided for; the current text does that. Making it a requirement for the code may be a wasted effort. In the light of that, I hope that the noble Lord can see his way to withdrawing the amendment. I stress that it is our intention that the code should require ISPs to provide generic advice and information on how to tackle infringement as well as on how to protect a wireless connection/network and that such advice is appropriate for the type of establishment in question. We will add a requirement under Clause 8 that this is a provision that the code must include. I hope that that gives some reassurance. In response to the noble Baroness, Lady Miller, we gave an example of a case study on urban wi-fi—the Swindon example. I can tell the noble Earl, Lord Erroll, that it is not our intention to stifle initiatives, but we believe that appropriate measures can be taken in all these circumstances. It is quite complicated but, given the time, I do not want to read out the Swindon case study, as it would not be appropriate. However, we believe that a type of free or coffee-shop access of a basic bandwidth service that offered users access to e-mail and web browsing would be unlikely to be the type of free broadband service that would be sufficient to support any file-sharing or that could be used for significant copyright infringement. The Swindon example is a two-tier service. One part of it is a restricted bandwidth, so it is unlikely that it could be used to engage in peer-to-peer activity. There is another paid-for subscription service where that might be possible, but I am sure that there will be conditions of use. I commend the factsheet. I would not say that it answers every question but it goes a long way towards addressing these issues. We have tried to make sure that there will be some requirements—things that the code must include. We believe that, in a situation where the technology changes frequently, we can meet the genuine concerns expressed. We have tried to strike a balance so that organisations such as universities, libraries and hotels have the ability to offer a service but are not exempt from taking the necessary measures and will not fall foul unreasonably, provided that they show that they have taken the necessary precautions. I hope that, in the light of the published information and my explanation, the noble Lord will feel able to withdraw the amendment.