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Digital Economy Bill [HL]

My Lords, I am allowed to move Amendment 2, and in doing so I declare my usual interest as chair of Consumer Focus. The amendment, which is fairly straightforward, is intended to ensure that notification of apparent breach of copyright by subscribers in a notification letter should not count towards any subsequent imposition of technical measures until after Parliament has decided that we should move to technical measures. However, I need to put this in a rather wider context. Those of your Lordships who have been present during earlier stages of this debate will know that I am not enamoured of Clauses 4 to 18, both from my concern as a consumer representative and from my concern about human rights. The Minister may be pleased to hear that I owe him an apology in relation to one aspect of the Bill where I misunderstood the intention. However, in general, although the Government have ameliorated some aspects of the Bill in the course of the Committee and Report stages, the basic problems still remain. So although this is a specific amendment, it goes to the heart of the way in which the Government propose to deal with the issue of online copyright infringement. I regret to say that during the course of our consideration of the Bill, we have seen one of the worst examples in my memory of the political parties being captured by a producer interest. That applies not only to the Government and the bringing forward of the Bill, but to the opposition Front Benches as well. Indeed, we had the extraordinary position of the Liberal Democrat Front Bench, including the noble Lord, Lord Clement-Jones, who I know to be a decent and liberal chap in most of his political endeavour, bringing forward an amendment—which is now Clause 18—that is actually more draconian than the Government’s Clause 17. I hope that at some point, when we reach that stage, they will recognise the error of their ways. Unfortunately, in terms of the balance of debate within this House, we seem to have a near unanimous position in support of the government proposals. Apart from the noble Earl, Lord Erroll, the noble Baroness, Lady Miller, myself and one or two others who have appeared maverick in this debate, this House seems to have accepted the wisdom of going through a whole range of changes in our approach both to the law and to the way in which our digital media operate. We have imposed police powers on ISPs which are reluctant to accept them. We have threatened several millions of our citizens with exclusion from the internet by administrative decree, with dubious means of identifying who was actually the perpetrator of the alleged infringement. We have seen the Government, putatively this House and other political parties backing protectionism rather than competition and innovation, moving towards an exclusion of people from digital access rather than the inclusion that the rest of the Bill—which I fully support—provides. It has landed us with a pretty much unenforceable law that will get a penny back to the rights owners whom the legislation was intended to support. Out there, however, there is no unanimity at all. There is a very widespread opposition to the Bill from individuals who feel threatened, from parents who are concerned that measures will be taken against them because of their children’s use of the internet and from employers who are worried about the same thing in relation to their staff. Surveys conducted by my organisation, Consumer Focus, indicate that 75 per cent of the population do not understand what is lawful and unlawful in this context and that a rather higher proportion, when told what is lawful and unlawful, do not support those laws. There are alternative ways of moving to a different system of accessing copyright material on the internet. Lawful systems of file-sharing exist in the music industry and elsewhere; it is just that they have a very low recognition by the public. The survey that we conducted showed that, of the 20 such systems that are or have been in operation, none has received an awareness level above single figures in percentage terms. Yet, ultimately, at various points in this debate, we have all agreed that a move to lawful systems of file-sharing is the aim of this measure. Anxieties about the throttling or suspension of their internet connections have been expressed by people who will not be perpetrators. This includes not only businesses and parents, as I mentioned, but also the hotel trade—which provides access to the internet as part of its services to guests—libraries, colleges and other institutions whose students use the internet and wi-fi facilities. The Government have sort of acknowledged those anxieties but they have done nothing about changing the Bill to recognise them. They say that it will all be taken care of in the wash, as Ofcom develops its code with the industry, and that all these things will be clarified and no one needs to be anxious about them. However, despite a few ameliorations, this is still a bad Bill. It is bad for the digital rights holders to press their interests in this way, when there are alternatives, and it is bad for the Government to risk alienation of a very significant part of the population by enforcing these measures. My noble friend Lord Puttnam—who probably takes a different view from me in terms of supporting the digital rights owners—said a very wise thing earlier in the debate, namely that the Bill would clearly have benefited greatly from pre-legislative scrutiny in which we could have looked at all the options. Instead we have a Bill that does virtually nothing to encourage ways of bringing together the rights holders—the ISPs and lawful file-sharing operators—so that new business models could be developed. It could provide to the punters, and certainly to the casual users who are not making any money out of their copyright infringement, the ability to access cheaply, freely and flexibly through the new business models provided by those systems. Surely that is the road that we should go down, to move from the impossibility of pursuing millions of people under these arrangements to a situation where there are lawful means of gaining access and the only people who will continue to be accused of infringement of copyright are those who are making money out of it or who are such mega-multiple-serial offenders that some punitive measures are necessary. If we are to move to a more positive arrangement where most file-sharing is done lawfully, then an educational process will have to take place. All sides of the House have recognised that. My noble friend the Minister, like others, has said that stage 1 is an educational stage. However, it is not simply an educational stage. It is the beginning of measures whereby a subscriber can be designated and accused of an apparent infringement of copyright, which can eventually lead, through proceedings under the Bill, to a situation where draconian measures to throttle, cut off or suspend digital access are imposed. As I said, I have an apology to make to the Minister. I misunderstood the provision on the second-tier appeals procedure, which I thought was another part of the body to be set up by Ofcom; in fact it is a separate body and has a quasi-judicial function. However, I am not entirely clear that that meets all the requirements of European law on the telecoms package. Even if it does, it does not alter the fact that, at the beginning of this process, an administrative body will be threatening and imposing a sanction that is not subject to due process and where the subscriber is effectively regarded as guilty until proved innocent. I know that the Government and others in this House do not accept that, but that is how it will seem to millions of subscribers. The Government would have a more positive story to tell were they to accept that stage 1 is genuinely an educational stage and to say that they will use it not only to inform people of the copyright situation but to encourage the various parties to get together to develop and provide lawful means of accessing copyright material. That period should be tried for at least 18 months or a year after the Bill is passed and the code is drawn up. We will in practice need a somewhat longer period to assess that, but that at least gives a clear-cut distinction between stage 1, which is educative, and a decision by affirmative resolution of Parliament that we should move to stage 2, with all the penalties involved. This amendment therefore says that those notifications to individual subscribers, who may or may not be the actual perpetrators, should not count towards the accrued total which would trigger the sanctions in stage 2—the technical measures by which we mean cutting back or cutting off access to the internet—until Parliament has decided that that is necessary because we have not made sufficient progress towards reducing unlawful copyright infringement or developing lawful means of accessing copyright material. Until Parliament has said that, no notification should count towards a subsequent penalty. After that point—when Parliament has decided on an affirmative resolution based on the Secretary of State’s assessment of the situation, which will itself be based on a detailed Ofcom report—if we need to move to technical measures, any notification letter should count. This amendment will ensure that they do not count at the first stage and that they will be regarded, as my noble friend the Minister has said, as educational and informative. That would remove many anxieties among the public and it would certainly remove a significant number of my own. I have put this in a wider context which needs to be borne in mind, partly because this is the last opportunity to do so—and I promise not to speak at great length to subsequent amendments. The Government have an opportunity, if they were to accept this amendment, of allaying some of the anxieties, including, to some degree, some of my own. That would put this section of the Bill on a much more positive note. I would therefore hope, and expect, that my noble friend the Minister will be able to accept the amendment. I beg to move.