Legislative Scrutiny: Digital Economy Bill - Human Rights Joint Committee Contents

Conclusions and recommendations

Explanatory Notes and Human Rights Memoranda

1.  We are grateful for the human rights memorandum provided by the Government and for the further prompt assistance of the Bill Team. However, although the memorandum provided by the Departments on this Bill is helpful, and the information relatively full, we generally invite Government Departments to take a more proactive approach to justification for proposed interferences with individual rights. We reiterate our earlier recommendation that Departments should not rely on Section 6 of the Human Rights Act 1998 to justify their view that broad discretionary powers in a Bill or in secondary legislation will operate in a way which is compatible with human rights. Where necessary, relevant safeguards should be provided on the face of the Bill to ensure that delegated powers are adequately defined to afford legal certainty and ensure that Convention rights will in practice be protected. (Paragraph 1.5)

Copyright infringement reports (Clauses 4-8)

2.  We consider that despite the lack of information on the face of the Bill, it is unlikely that the operation of these proposals alone will lead to a significant risk of a breach of individual internet users' right to respect for privacy, their right to freedom of expression or their right to respect for their property rights (Articles 8, 10, Article 1, Protocol 1 ECHR). The limited impact on these rights by the operation of the copyright infringement reporting mechanism proposed is likely to be justifiable. However, in the light of the concerns raised by internet users and human rights organisations, we recommend that the Government provide a further explanation of its views on why these proposals are proportionate, including by outlining the harm currently suffered by individual copyright holders and the wider public interest in promoting creativity, and why that harm cannot be appropriately addressed by existing civil and criminal penalties for copyright infringement. (Paragraph 1.23)

3.  In order to consider how these proposals might operate in practice and to assess the proportionality of these measures, we have had to rely on the contents of the Government White Paper, statements during debate and other documents prepared by the Government Bill Team in order to envisage how these proposals might operate. In the light of the fact that the copyright infringement report and any subsequent list may form the basis for the imposition of technical measures which will have a more significant impact, we are disappointed at the lack of detail about the process provided on the face of the Bill. (Paragraph 1.24)

Technical measures (Clauses 9-16)

4.  The lack of detail in relation to the technical measures proposals - and in particular, in relation to the scope of technical measures, the criteria for their imposition and the enforcement process - has made our assessment of the compatibility of these proposals with the human rights obligations of the United Kingdom extremely difficult. As we have explained in the past, flexibility is not an appropriate reason for defining a power which engages individual rights without adequate precision to allow for proper parliamentary scrutiny of its proportionality. (Paragraph 1.28)

5.  We reiterate our invitation to the Government to provide fuller justification for its proposals. (Paragraph 1.38)

6.  In our view, it is impossible assess fully whether these proposals will operate in a compatible manner in practice without more detail of the proposed mechanism for technical measures. Because of the lack of detail on the face of the Bill and the limited foundation for justification provided for the breadth of these proposed powers, we acknowledge the concerns about the potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users' rights to respect for correspondence and freedom of expression. (Paragraph 1.39)

7.  There are a number of issues which could helpfully be clarified; some on the face of the Bill, in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention. We recommend that the Minister clarify:

a)the precise intended impact of these proposals on individual accounts, including (i) whether technical measures may include indefinite suspension of an account and whether any service limitations imposed will be for a specified time-frame and/or renewable; and (ii) any potential impact the imposition of technical measures may have on the ability of a user to secure an alternative service; (Paragraph 1.40)

b) the minimum criteria which would be required to be satisfied before the imposition of technical measures. The Government has indicated that technical measures will follow the issue of copyright infringement notices. It would be helpful if the Government could clarify whether (i) the imposition of technical measures will be subject only to the initial assessment of the copyright holder that it appeared that the individual service user had breached his or her copyright; and (ii) if so, would the same standard of evidence and proof be required for the imposition of technical measures as would be required for the issue of copyright infringement reports? (Paragraph 1.40)

8.  We recommend that the Bill be amended to make it clear that technical measures may only be introduced after an assessment by OFCOM of the necessity and proportionality of these new measures, taking into account the impact of the initial obligations code. In so far as it is possible, we recommend that the Bill should be amended to provide additional details on the minimum criteria for the imposition of technical measures, including the standard of proof which must be applied; the "trigger" for the imposition of such measures; and any relevant defences for service users who have taken all reasonable measures to protect their service from unauthorised use and who have not knowingly facilitated the use of their service for the purposes of infringing copyright. (Paragraph 1.41)

Right to a fair hearing (Article 6 ECHR)

9.  We accept that there is no clear answer to whether the decisions taken during the process of issuing copyright infringement reports and infringement lists involve the determination of any individuals' civil rights and that it is unlikely that Article 6 ECHR is engaged. However, in the light of the acceptance by the EU that a fair process is necessary for regulation of individual service users' access to the internet, we consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list at this stage would lead to a fairer procedure and so be a human rights enhancing measure. (Paragraph 1.44)

10.  Although there is very little detail about the appeal mechanism, the enforcement and reviewing bodies on the face of the Bill, it is our view that, provided the time frame for review and appeal is adequate and the measures are routinely suspended until the right of appeal is exhausted, it is unlikely that these provisions will be structurally incompatible with Article 6 ECHR. The provision of a review by an independent reviewing body and a full right to appeal before the First Tier Tribunal, prior to the imposition of any sanction is adequate to meet the requirements of the Convention for a hearing by an independent and impartial tribunal. (Paragraph 1.48)

11.  Without a clear picture of the criteria for the imposition of technical measures, it is difficult to reach a final conclusion on the fairness of the substantive decision making process for the imposition of technical measures and its compatibility with Article 6 ECHR and the common law. We recommend that at a minimum, the Government must be required to confirm that the First Tier Tribunal will be able to consider whether an infringement of copyright has occurred and any defence that no infringement of a copyright holders' rights has been committed or knowingly permitted by the account holder. Further information about the quality of evidence to be provided and the standard of proof to be applied should be provided, ideally on the face of the Bill, and at a minimum by the Minister during the course of debates on these provisions. In addition, we recommend, for the avoidance of doubt, that the Bill require that the technical obligations code must provide for any appeal rights to suspend the application of technical measures and for costs of any successful appeal to be recoverable by any successful applicant. (Paragraph 1.50)

Reserve powers (Clause 17)

12.  In the light of the breadth of this proposed reserve power and the need for a delicate balance to be struck between the right to freedom of expression and the property rights of copyright holders in any changes to copyright law, we are concerned that Clause 17, as amended, remains overly broad. (Paragraph 1.55)

13.  We welcome the Government's decision to introduce the use of the super-affirmative procedure. However, we recommend that:

a) The Minister should explain why parliamentary scrutiny of any relevant human rights issues will be adequate without any power for Members of either House to propose amendments to the draft order. (Paragraph 1.56)

b) Any explanatory memorandum accompanying an order made under Clause 17 should include an assessment of the Government's view on the compatibility of the proposals with the human rights obligations of the United Kingdom, including the European Convention on Human Rights. (Paragraph 1.56)

c) The Government should be required to clarify which Committees it would consider 'charged' to report on any relevant proposal, other than the Joint Committee on Statutory Instruments (JCSI). We are not required to report on any secondary legislation other than remedial orders laid under the Human Rights Act 1998, but we do report from time to time on proposals in secondary legislation which we consider raise particular human rights concerns. We would be grateful if the Government would explain how a negative recommendation from our Committee or its successors would affect the Government's approach to an order. (Paragraph 1.56)

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Prepared 5 February 2010