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Digital Economy Bill [HL]

My Lords, I made the Government’s view of this clause clear on Report. I certainly agree that we should have a way of tackling online copyright infringement that will not be susceptible to the provisions in Clauses 4 to 17, but I am afraid that this clause is not it. I have already outlined our primary concerns. At a purely practical level, despite the drafting in subsections (6) and (7), this is not compatible with the technical standards directive and will not be capable of being enforced. Furthermore, as the industry, public and media response over the past 10 days has made clear, this measure needs careful design if we are to avoid significant disadvantages and unforeseen and unwanted consequences to the internet and the digital economy. I reassure the noble Lord, Lord Lucas, that although I am a former employee of BT, I am not listening to the siren voices. I always enjoy listening to the noble Lord’s dulcet tones. We are no longer running away from this issue but, I hope, heading in the right direction. As I said, there has been a lot of response in the media. I acknowledge that the noble Lords who proposed this clause share the Government’s aim of addressing online infringement of copyright, which is the intention behind this clause. Our intention as the Bill moves to another place is to try to bring forward a clause that would ultimately achieve the same effect, but one which could be enforced, by proposing a power for the Secretary of State to bring forward regulations to achieve the desired effect in relation to site blocking. This would allow for not only proper notification under the technical standards directive but also—this is important—proper consultation and consideration of the evidence for the need for and proportionality of the measure. This is a complex issue, as has been acknowledged even in this short debate. I thank the noble Earl, Lord Erroll, for the clarification he gave about the role of ISPs as a conduit and the fact that they cannot check everything. Given that and the fact that we do not believe that this clause as drafted could be legally enforceable, it does not help for the Government to take a view on the amendments. I do not believe that amending the clause would be particularly productive. We need instead to look at something that would work legally by giving the Secretary of State a power to bring forward regulations to achieve the desired effect, while taking into account all the points made during the House’s consideration of the clause. That is a genuinely sincere commitment. This includes the need to ensure adequate protection for national security, which I am sure the whole House will agree is necessary. On the points made by the noble Lord, Lord Clement-Jones, we recognise that these amendments are well intentioned. It can only be a good thing for subsection (4), for example, to be removed, though I am unsure about the proposed provision on costs. I acknowledge that the noble Lords have attempted to address the harm that could be caused by copyright owners seeking to get sites blocked by threat rather than by court action but I am uncertain that these amendments deliver that intention. Amendments 19 and 23 seek to respond to a further concern, to which I alluded on Report, about the likely impact on the ability of our intelligence and law enforcement agencies to do their jobs properly. I am grateful to the noble Lords, Lord Howard and Lord De Mauley, for this attempt to resolve that concern. However, this amendment very much misses the point. We cannot support the notion that the Secretary of State should present evidence in relation to every injunction application when it may be possible to establish a consistent and foreseeable position. Separate consideration in relation to each application does not seem like a good use of taxpayer money, court time or, indeed, the time and money of the copyright industries, which might pursue any number of fruitless applications while waiting for a court to reach a different decision. I reiterate the point that I made earlier. As the Bill moves to another place, it is our intention to try to bring forward a clause that ultimately achieves the same effect. That is a sincere and constructive commitment, and I have tried to address the genuine concerns that have been expressed. I give the noble Lord, Lord Triesman, the reassurance that a conversation and dialogue would of course be required to take place. I think that there was one other point. Although my noble friend Lord Puttnam is not in his place at the moment, the noble Lord, Lord Razzall, rightly reminded me of the question of why ISPs are allowed to say that this has nothing to do with them. He rightly referred to the "mere conduit" defence from the e-commerce directive. In our view, ISPs are an important stakeholder and should be involved in taking this matter forward but within the e-commerce directive. I trust that, in the light of the assurances I have given, the noble Lord will feel able to withdraw the amendment.