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It is important that this is brought out and detailed at an early stage, and that some real thought goes into making it easy for consumers to make their wi-fi net secure, not just against people who are raiding it from outside. It is all very dramatic and doubtless some people are doing so, but it is not exactly a vast proportion of the population that goes around sitting in cars using other people's wi-fi networks; there are many more consumers who have the rest of their family spread out around the house doing goodness knows what. People are going to need help to secure the wi-fi network against that sort of activity, to ensure that illegal activity is not happening on their network.

Something else that the Government are apparently contemplating, which I approve of, is a service whereby people could have their own computer checked to demonstrate that it had not been used to download illegal material, as a quick and convenient means of defence. I presume that this would be done remotely, with people allowing some government-authorised contractor to have remote access to their hard disc and run a checking programme, at the end of which they would say, "Tick. This computer has not been used for that purpose and the necessary protections have been installed on it". All this needs to be set out clearly and in detail right at the beginning.

I am content with the Government's drafting at the moment, but I suspect that when we have been through this part of the Bill and I have been properly instructed by the Ministers about exactly what is happening, I may come back on Report saying, "Can we have a bit extra here?".

The Earl of Erroll: My Lords, I would like to add to what the noble Lord, Lord Lucas, has said. I agree with him that these lines should not be deleted; indeed, they should probably be somewhat added to.

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The Minister sent a helpful little note around on some of the things that we have already debated. On the page headed,

"What might such reasonable steps be in practice?",

it says, and this amplifies the point made by the noble Lord, Lord Lucas:

"Within a household the information and options to impose controls over what can be accessed are built into the routers and the browsers. This means that it is possible to impose those controls in relation to a number of different computers",

and so on. I have a certain amount of technical knowledge, but I do not know how I would set up my router to prevent access to certain types of material-to certain specific websites, maybe, but those websites may be harbouring both copyright and non-copyright material, and it is the copyright material that we are trying to legislate for, not the access to websites. The browsers reside on each individual computer so those are not available centrally. The point made by the noble Lord, Lord Lucas-that if these people are connecting over wi-fi you cannot do anything about it-is still valid, despite that note. I am grateful for the note, though; much of it was extremely helpful.

This needs to be explored more deeply. The whole issue of advice on how to protect is essential. As I said at a previous stage, certain senior members of the Government-I do not mean this politically; I simply mean members of the Executive-would do well to be taught how to protect their networks, because I know they are unprotected.

Lord Davies of Oldham: My Lords, I think I am grateful for those last two contributions. I am certainly grateful to the noble Lord, Lord Lucas, because he identified the fact that we may need more rather than less. Accepting the amendment and taking out this opportunity for advice would therefore be a mistake. I think I am also grateful to the noble Earl, Lord Erroll. I think he is indicating that more information may be needed. Certainly, it may be necessary for us to act in those terms in due course. It would not be helpful if we accepted the amendment, which would preclude these aspects.

The question of websites is fairly straightforward. The main operating systems such as Windows also come with parental controls. They allow websites to be blocked by genre and can filter access to websites by other criteria. This aspect is straightforward. I recognise that the noble Earl, Lord Erroll, is identifying additional dimensions beyond those on which we need to think further. What I want to say to the noble Lord, Lord Razzall, and the noble Lord, Lord De Mauley, who gave him some support, is that we think it is necessary to retain the clause as it is. Many people do not realise that there are simple steps that can be taken to make it difficult for all but the determined and technically capable to use, for instance, a wireless connectionwithout permission. We will need to make sure that they know that. To remove this part from the clause would be a detrimental step.

We have had an interesting little debate with some contrary opinions, but I hope the Committee will appreciate that the Government are, for the best of reasons, eager to retain the clause as it is, so that we can meet these issues with regard to advice as ably as the industry can.

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Lord Razzall: My Lords, I am intrigued that what seemed to be a relatively straightforward drafting amendment has provoked such an extensive debate. Clearly, having lunch with the Bill team ought to be recommended for anybody participating in this debate. I am sorry that I have not yet had the opportunity to do so.

The point that I was trying to make, which is very straightforward, is that a lot more advice is required for anybody who is subject to a copyright infringement report. I am surprised that the noble Lord, Lord Lucas, does not support me in this. I do not know why one particular type of advice-that is, on what to do in relation to those networks that use wireless telegraphy-should be singled out and put into the text of the Bill. Clearly, the code will need to deal with all sorts of issues that the subscriber to whom an alleged infringement report is sent has to deal with. Why are we singling out advice regarding wireless telegraphy? The only point I was making is that that seems inappropriate and it would be better to put this advice and the requirement for the advice in the code, including all the extensive detail that no doubt the noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, in their lunches with the Bill team, will be able to devise to ensure that the appropriate advice is given to the potential infringer. That is all I was saying. I am happy to withdraw the amendment.

Amendment 64 withdrawn.

Amendment 65

Moved by Lord Lucas

65: Clause 4, page 6, line 36, after "telegraphy;" insert-

"( ) full details of a subscriber's right to appeal, and of where information on how to appeal may be found;

( ) advice on the possible consequences of continued infringement;"

Lord Lucas: This is a fairly self-explanatory amendment, suggesting that a couple of things might usefully be added here. These are details of the right to appeal, to make it clear that there is a route on from here for someone who thinks that they are being wrongly accused, and advice on possible consequences so that they know where that road might lead.

I say to the noble Lord, Lord Razzall, that any time he wants to come to the staff canteen with me, he is very welcome to do so. I beg to move.

Lord Whitty: My Lords, I broadly support these amendments. In discussing notification procedures that may eventually lead to sanctions, it seems to me that at the very least we should inform the accused person about the right of appeal and, perhaps even more importantly in terms of determining their future action, the possible consequences of continued infringement. I forgot to declare that I am chair of Consumer Focus. I hope that runs through all my interventions today, lest I forget to do so again. This seems to me a fairly straightforward measure. The Government would allay some anxieties were they to accept the amendment of the noble Lord, Lord Lucas.

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Lord De Mauley: My Lords, our Amendment 66 has a very similar effect to my noble friend's Amendment 65 in that it ensures that the subscriber is made aware of the possibility that, should he continue to carry out illegal peer-to-peer file-sharing, he may face technical measures at a future date.

We all hope that the initial obligations process will be enough to deter the vast majority of those who undertake illegal peer-to-peer file-sharing. We agree that receipt of a letter outlining the unlawful activities that have been taking place on one's internet account should be sufficient to make most people desist from doing so. Indeed, numerous polls suggest that such a warning would be enough to make a significant number of people stop this unlawful activity. However, there is a danger that some may well decide that such a warning is simply an empty threat. It is worth noting that many final reminder notices for utility bills, for instance, include the possibility of court action if the customer continues to default on payment. Such a warning acts as a significant incentive for the consumer to pay up. Clear notification that technical measures may well be used in future would act as a similar deterrent to alleged copyright infringers. Such a warning would increase the chances that someone would cease illegal peer-to-peer file-sharing activities and would, we hope, mean that fewer cases would actually result in technical measures being used. The Government may well think that such warnings would be included under "(g) anything else", but it would be helpful if the Minister could confirm this or inform us otherwise.

As regards Amendment 70 of the noble Lord, Lord Razzall, I entirely agree that the notification letter should include information about how the subscriber should proceed if he believes that the ISP or the rights holder has made a mistake in identifying either his IP address or his account. May I also ask the Minister what measures there will be for errors to be ironed out quickly and cheaply? We have later amendments looming that relate to appeals. I am sure everyone here would agree that easily correctable errors should be sorted out long before it gets to that level, and that no allegation of guilt should remain attached to a subscriber who is simply the victim of mistaken identity.

Lord Clement-Jones: I should like to speak to Amendment 70. We support the principle of the other amendments in this grouping. It is very important that the notification under Clause 4 includes those matters which will guarantee the rights of the subscriber in these circumstances. We believe that advice about how to respond to the notification, if a subscriber believes it to be based on an error of fact, wrong in law or unreasonable, should certainly be included in the notification. Noble Lords have phrased this in different ways in their amendments but that seems to us to encapsulate the essence of the matter. We believe that, for the sake of natural justice, and for the sake of the subscriber-the subscriber can be an individual or an educational or cultural institution-served with a copyright infringement notice by the relevant ISP, it should give advice about how to contest the notification. That seems to be axiomatic. Even if the Government cannot accept these amendments, I very much hope that they will formulate something which responds to this group.

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The Earl of Erroll: My Lords, I agree with everything that has been said so far. I have added my name to Amendment 66, but I should also have added it to Amendment 65 as the two amendments are slightly parallel. I certainly think that information on instituting a right of appeal has to be there up front. I hit this recently on a parking infringement in Milton Keynes where they offer you a 50 per cent discount if you pay within two weeks. It mentions appeal but does not tell you how to do it. It then turns out they will tell you only once your discount period has expired. This is in order to bully you into paying up front without going to appeal, because otherwise it will cost you more. Hiding these things would be counterproductive and is not good for the citizen. The right of appeal has to be there. Therefore, I should like to add my name to the amendment proposed by the noble Lord, Lord Lucas, on that.

Regarding this part of the Bill, the Minister has repeatedly said, "We hope that we don't have to go as far as technical measures; that is the 'in extremis' position. We have to get this solved by the early letters". You have to make the stick apparent; otherwise people are not going to pay any attention to those letters. That is why I added my name to Amendment 66.

4.45 pm

Lord Young of Norwood Green: I will take Amendments 65 and 70 together, since they propose similar changes to the Bill.

The purpose of these amendments is to add further required information to notifications sent to subscribers if they have been alleged to be infringing copyright online. This further information would be how the subscriber can respond to receiving such a notification of an alleged infringement and how they can appeal if they believe the notification to be based on an error of fact or law, or is unreasonable, and the potential consequences of continued infringement.

Noble Lords will have seen from the draft outline initial obligations code that we have provided that it is intended specifically to address this point as one of the points that a notification would cover. However, I would make a strong plea for some flexibility here. In particular, it seems to me that we would be very well advised to give as much encouragement as we can to the initial communication on this being couched in terms of friendly advice. Most people will not need much persuading to swap infringing behaviour for legitimate activity, and there is much to be said for maintaining good relations with them while making sure that they get the information that is needed.

Of course, as the legislation requires that an appeals process should be set up, it would not be conceivable that in practice notifications would not contain information on how to appeal. I reassure noble Lords that that will be part of the notification. I stress the importance of getting that first notification right. We are about persuasion and getting people to recognise that they can deal with this, and we do not want to err too much on the side of the stick being applied at this stage. An appeal process is obviously essential. Internet service providers will certainly not want to clog up their response centres with people

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trying to get information about notifications when there is a simple way of channelling them to where the information is.

The information about consequences is also provided for in the amendment, but I do not think that it should be mandatory. There may well be value in including such information and making it plain in a second or subsequent notification but, as I say, there may also be value in keeping the first notification friendly, and I see no reason for blocking off that possible flexibility. It does not take away the importance of the right of appeal. The possibility of including such information is therefore already in the Bill, and I urge the noble Lord to withdraw the amendment.

Amendment 66, tabled by the noble Lords, Lord Howard and Lord De Mauley, and the noble Earl, Lord Erroll, would require notifications sent to subscribers to include information about the possible imposition of technical measures. For reasons that I have outlined in relation to the other amendments in this group, it may not always be appropriate to include such information. This is, after all, relating to the notifications to be sent as part of the initial obligations, when technical measures will not be in force, and which we hope will not in fact be needed. There have been a couple of analogies, one of which was parking fines, which is not appropriate. We are not going to hide anything and we are not seeking to fine people when we send the first letter.

I preferred the analogy by the noble Lord, Lord De Mauley. If it got to the final demand, in red, which he rightly said rather like hanging tended to concentrate people's minds wonderfully, of course it might well be appropriate at that stage to include the technical measures. We are saying that a lot of this needs to be clearly defined in the code. As such, it may be something that the code decides would be appropriate for a subsequent letter but not for the initial notification, where it is to be expected that the tone will be more courteous and the emphasis more on preventing such a thing happening again and indeed on assisting subscribers in ensuring, if it was something that was done without their knowledge, that it would not happen again. They may be individual subscribers or, as the noble Lord, Lord Clement-Jones, said, communal subscribers. We issued a paper on measures that could be taken by community subscribers. I do not know whether noble Lords have had a chance to digest it. We hope that it provides helpful information.

Lord Clement-Jones: My Lords, the Minister talked about the guidance document. Even if the Government do not accept the amendment, there is a good case for tightening the wording of the accompanying guidance on the way that the letters are sent out. The Minister made the point that it may be only on the second or third letter that it would be appropriate to inform a subscriber about the rights of appeal; but this document does not make that clear. It could be tightened. The key sentence currently runs:

"A further area that the code may address would be advice or information about a subscriber"-

I assume that a word is missing and that it should be "how a subscriber"-

That is not as tight as it could be.

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Lord Young of Norwood Green: My apologies-I thought that I had made it abundantly clear. We are appealing for flexibility, including the ability to provide people with the right of appeal. After all, a letter may have been sent to them in error. We are not arguing about that in the first letter. My comments on technical measures related to the first letter. We believe that these things are appropriate to the code. We believe that we have got it right in the Bill, but I was trying to give an explicit assurance about the right of appeal.

I will finish my comments on Amendment 66. The technical measures may be something that the code decides would be appropriate for a subsequent letter, but not for the initial notification, where it is expected that the tone will be more courteous and the emphasis more on preventing such a thing happening again. It is right to provide a degree of flexibility here, as the current text allows. I reiterate the assurance about the importance of the right of appeal-let there be no doubt about that. I see why noble Lords have suggested including this information in the Bill, but we do not think that this is necessary and believe that it is more appropriate in the code. In the light of the assurances that I have given, I invite the noble Lord to withdraw his amendment.

Lord Lucas: My Lords, this is one of those occasions when the Government are bound to be right. If we think that this should not be in the Bill but in the code, the Government are right; and if we think that this should be in the Bill but not in the code, the Government are right. One has to bow to their superior wisdom. I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

Amendment 66 not moved.

Amendment 67

Moved by Lord De Mauley

67: Clause 4, page 6, line 36, at end insert-

"( ) information about the protection of electronic communications networks from malware;"

Lord De Mauley: My Lords, the Bill as currently drafted would allow a great deal of useful consumer information to be included in the notification that an internet service provider sends to its subscriber. This includes information on how to obtain legal access to copyright works and how to protect oneself against wireless hijacking of an internet account. This seems to be a good opportunity also to include information on another major problem and irritant of electronic communications-malware. That is what Amendment 67 seeks to do.

As noble Lords will be aware, malware is malicious software designed to load itself into a system without the owner's knowledge. We have already discussed the likelihood that illegal copyright infringement could be committed unwittingly by a subscriber whose computer has been taken over by a virus. Such viruses are frequently very sophisticated, and difficult and expensive to get rid of. There are also many different anti-malware

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packages sold or given away that add to the confusion of a subscriber who might not be very up-to-date in such matters. Informing subscribers of reputable programs to protect their computers, or ways in which they can check to see if their computers have been infected, would be helpful in preventing genuine copyright infringers from continuing to act while protecting innocent subscribers. I beg to move.

Lord Whitty: My Lords, I support the principle of the amendment. We have spent a lot of time discussing what a subscriber would be expected to do to provide a reasonable defence when it was not him, but someone else, who committed a violation. Regardless of whether the amendment is in this form of words, it is important that somewhere in the Bill there should be a requirement that the subscriber should be told in the initial contact what they need to do to protect their equipment from misuse. The Minister provided us with a draft of the code and, in a letter, with some useful information. However, the code does not address the issue of what a subscriber would reasonably be expected to have done. Advice in the initial letter is therefore important. I hope the Government will at least take that on board.

The Earl of Erroll: My Lords, the noble Lord, Lord Whitty, has put it excellently.

Lord Clement-Jones: My Lords, having heard the arguments, I, too, support the amendment. It seems rather similar in intent to provisions that the Bill already contains and that the Minister so carefully justified earlier in terms of advice about protection of electronic communications networks that use wireless telegraphy. This amendment is of equal importance in those circumstances, and there is therefore a very good case for its inclusion.

Lord Young of Norwood Green: My Lords, I thank the noble Lords for tabling this amendment. The effect of the amendment would be to require notifications sent to subscribers to include information about the protection of electronic communications networks from malware. I understand and sympathise with the reasons why they have tabled the amendment. With such malware it is possible for others to hijack connections for malicious purposes and for the subscribers to be ignorant that it has happened. Receiving a notification about something which, on the face of it, had nothing to do with the subscriber may cause confusion and doubt, and the possibility that such an infringement may have happened via the subscriber's connection without their knowledge will need to be taken into account.

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