Written evidence submitted by TalkTalk Group

1 TalkTalk Group (TTG) is one of the UK’s largest ISPs and provides broadband to over 4 million residential and business broadband customers under the principally TalkTalk and AOL brands. Our perspective on IP issues comes largely from our position an ISP who is being coerced or forced into a position of policing the Internet and being an ‘IP enforcer’1.

2 Though TTG are sometimes portrayed as being anti-copyright this is not correct. We recognise and respect the economic role that copyright has in creating incentives for investment and production. We do not condone or encourage infringement. Rather our opposition to the various measures to reduce copyright infringement contained in the Digital Economy Act 2010 (DEA) is founded on profound concerns regarding its legality, effectiveness and proportionality.

3 In respect of the Hargreaves review and the Government’s plans for its implementation our views focus on recommendation 1 regarding the need for evidence to drive policy (rather than lobbying or lobbynomics). We are pleased this was recommended in the review and has been adopted by Government.

4 Much of the Government’s response to this recommendation focuses on the need for unbiased and reliable research and evidence around the prevalence and impact of copyright infringement. However, evidence-based policy is not merely about the underlying data – it is also about the overall analytical process, in particular properly taking into account all factors that affect whether a policy option is desirable and weighting these up objectively.

5 This was particularly wanting in the development of the DEA in 2010. Evidence and reasoning that did not fit the Government’s desired policy was ignored – for instance, the likely ineffectiveness of the proposals, the significant implementation costs and the harm it would cause to innocent subscribers were all brushed aside since ‘something must be done’.

6 The development of section 17 and 18 in the DEA regarding web blocking measures was particularly lacking in evidence-based policy making. Web blocking options were not consulted on at all. The initial web blocking amendment (introduced in the Lords) was drafted word-for-word by the BPI. The amendment then got substantially modified in the wash-up process without any Parliamentary scrutiny. Through this there was never any proper process to gather and understand relevant evidence or assess whether web blocking would be effective. And now the Government has effectively abandoned these sections because they would be unworkable.

7 Though the Government has supported recommendation 1, its proposals for implementation appear weak. Getting the implementation right is important since it is likely that measures to tackle copyright infringement will continue to considered and may figure in the upcoming Communications Act. Two key aspects will be important for the implementation to be effective.

8 First, is ensuring evidence plays its rightful role. It is not enough just to bolster the IPO with economists (though this is a welcome and necessary step). There must also be a change in the approach of Government of listening to the evidence and reason before coming to a policy decision. The role of the economists and other staff must not be merely to post-rationalise the policy that the Government has already decided on.

9 Second, is proper consultation. Open and transparent consultation is essential so the full range of evidence and views can be taken on board. Consultation is also particularly important where powerful lobbyists are in play else public confidence in policy will be low. Thus, Government must also commit to clearly laying out and consulting on the evidence and reasoning that it is using to support its policy approach.

10 It is only through these analytical and institutional changes that the danger of over-reliance on lobbying can be counterbalanced and be seen to be counterbalanced.

11 The other aspect of the Hargreaves review that we welcome was recommendation 8 which highlighted that tackling infringement was not merely about stronger enforcement but also needed more effective markets, copyright modernisation and education to build respect and legitimacy for copyright. What was notable about the DEA in 2010 was the wholesale absence of any of these other measures – the Act only included enforcement measures (such as letter writing, disconnection and web blocking). We hope that any new policies in this area are suitably holistic and balanced.