Education Bill

MEMORANDUM SUBMITTED BY THE DEPARTMENT FOR EDUCATION (E 64)

AMENDMENT 82, CLAUSE 13 AND NEW SCHEDULE 1

Reference: EBCC/2011/Note 5

1. To aid the Committee’s consideration of the Education Bill, this note provides further information on amendment 82 to clause 13, which provides for compliance with the European Electronic Commerce Directive (Directive 2000/31/EC) ("the Directive").

2. The provisions in c lause 13 will give teachers in schools the right to anonymity until the point of charge when accused of a criminal offence by or on behalf of a pupil. These provisions cover any publication addressed to the public or a section of the public, whether this is on the internet, on a social networking site, or otherwise.

3. The Directive is intended to ensure the free movement of information society services between European Economic Area Member States ("Member States"). Information society services are defined essentially as "services normally provided for remuneration, at a distance, by means of electronic equipment for the processing and storage of data, and at the individual request of a recipient of a service". The Directive seeks to harmonise rules on issues such as the transparency and information requirements for online service providers, commercial communications and electronic contracts. The Directive means that information society services are, in principle, subject to the law of the Member State in which the service provider is established and that in turn the Member State in which the information society service is received cannot restrict incoming services. In this way a provider cannot for example be punished in two Member States for the same offence and a service provider providing a service across several Member States needs to ensure compliance with the law in the country in which it is established, but not in each and every Member State.

4. On reflection, we have decided not to ensure compliance with the Directive through regulations, but rather through a Government Amendment to primary legislation, to give the Public Bill Committee due opportunity to scrutinise the provisions.

5. To comply with Article 3(1) of the Directive we have to make provision for information society service providers established in England and Wales to be liable for any offences under new section 141G in the Education Bill committed in another Member State; and to comply with Article 3(2) we need to provide that an information society service provider established in another Member State, or outside the European Economic Area, is not covered by the offences under new section 141G (because they will be subject to any criminal penalties imposed by the Member State where they are established).

6. The Government Amendment required to ensure compliance, requires a new Schedule 11B to be added to the Education Act 2002, reflecting the complexity of the requirements of the Directive.

7. Paragraph 2 applies to service providers based in England and Wales and provides that where they publish information in breach of section 141F(3) in an EEA state other than the UK in the course of providing information society services then the offence under section 141G applies.

8. Paragraph 3 prevents proceedings for an offence under section 141G being brought against a service provider established in an EEA state other than the UK.

9. The rest of the Schedule provides for exceptions to the offence under section 141G that are required by the Directive where the service provider is a "mere conduit", simply passing the information on; where the service provider is "caching" (i.e. storing information just for the purpose of making the onward transmission of the information more efficient); and "hosting", that is simply storing the information without knowing that the information contained offending material.

10. As a consequence of the devolution settlement, the amendment means that while a service provider established in England and Wales will be guilty of an offence under section 141G if they publish information in England and Wales or in another EEA state outside the UK, they would not be guilty of an offence if they published the information only in Scotland or Northern Ireland. In practice however, information published online in Scotland or Northern Ireland by an English or Welsh service provider about a teacher in a school in England and Wales would be available in England and Wales due to the nature of the internet, and so would already be covered by clause 13. Likewise service providers established in Scotland or Northern Ireland are outside the provisions of the Schedule with the result that if they published information in England and Wales they would still be guilty of an offence under section 141G.

March 2011