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Baroness Buscombe: From listening to the Minister respond to my noble friend's concerns about the possibility of this body in Clause 7, it sounds as if he had almost lost the will to live. He does not want Ofcom to have more powers, and he does not want to set up a quango-so what is the point of new subsection (4) in Clause 7? Why do we need to establish another body or body corporate? We know that it is highly unlikely to be more cost-effective to set up another body. Is the Minister saying that he would prefer that Ofcom were to undertake these responsibilities? Who will it be left to to decide that there should be another body corporate? The whole thing seems to have been introduced into the Bill without much aforethought-hence the Minister's notes sound less than convincing. Given that the Government have concerns about having more quangos and want to be an effective Government and so on,

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why are we now talking about other bodies that may come into fruition? It is all so fluffy and ill thought-through, if I may say so.

Lord Young of Norwood Green: My Lords, the noble Baroness is being harsh. No, I have not lost the will to live. Fancy being deprived of the sheer pleasure of listening to the noble Baroness enunciating my poor performance in these areas, or the ineffectiveness of the superb briefing notes supplied by my superb Bill team. But to treat the matter seriously, let us not elevate this more than it should be. We are introducing some flexibility, which may be more appropriate as we are trying to determine the best solution. If it proves to be that the most effective solution is for Ofcom to do it, we will not oppose that in any way. I am pleased to see that a member of the Opposition, whose stance is normally to be highly critical of Ofcom and accuse it of having far too many powers, should insist that it retains this particular one. We believe that this is a flexibility that is reasonable in the circumstances. If Ofcom proves to be the right body to do it, we would not oppose that-it is merely about flexibility.

Baroness Buscombe: I am grateful to the Minister for allowing me to intervene again briefly. What is being proposed here is extraordinarily wide-ranging; it is almost terrifying in its proportion. New subsection (4) establishes,

I have never before heard such a wide-ranging power being proposed in a Bill. I say that as a lawyer-and perhaps that means that I will be overcautious, but this is truly extraordinary. Perhaps this could be thought through with some care, in discussion with other Front Benches, between now and Report. The possibility is really quite disproportionate to the powers that we hope will be granted to such bodies corporate.

Lord Clement-Jones: My Lords, to add to the Minister's will to live, I wondered whether this issue had some relation to that mythical beast, the Digital Rights Agency, which we saw heralded but that never actually appeared. I do not know if this is at all relevant to that. We on these Benches thought it was an unnecessary body, but maybe it is one of the unnecessary bodies that is being envisaged in this part of the Bill.

Lord Young of Norwood Green: While I am on this collective life-support machine, we will take this one away to ensure that we reassure the noble Baroness that that is not the aim or intention of this clause. With that assurance, I hope that the noble Lord feels able to withdraw his amendment.

Lord Howard of Rising: My Lords, I am grateful to my noble friend Lady Buscombe for her relevant and pertinent remarks, although I am now rather worried about the Minister's health. He seems to be looking all right; I just hope he will make it through the rest of

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this evening-perhaps even for the rest of the debate. It looks as if we have a long hard road ahead in this Committee, and I would hate to think that he would not make it.

I am glad to hear the reluctance from the Benches opposite to create new bodies and quangos. I am sorry that the Minister thought my remark unfair, but he must admit that quite a few have been created in the past few years.

I do not see how removing the option to have various other bodies would be more effective. Surely the most effective method of doing something is to use the body-in this case, Ofcom-that already has the expertise to carry out the job and already has an overhead, offices and everything that is required to do this, rather than to set up any new body, or bodies, as my noble friend Lady Buscombe pointed out.

The explanation that the Minister gave has not really answered this point. He commented that the remit would be limited, but frankly that is even less reason to set up a new body. I do not know if he would care to comment on that before I withdraw the amendment.

Lord Young of Norwood Green: My Lords, I gave an assurance that we would take this away to see whether we are creating anything that is unnecessary. We believe that we are not, but we will look at the point that the noble Baroness, Lady Buscombe, made about extensive and unnecessary powers. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Howard of Rising: I thank the Minister for his remarks and for his agreement to go and have another look. I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

Amendment 100 not moved.

Clause 7, as amended, agreed.

Clause 8 : Contents of initial obligations code

Amendment 101

Moved by Lord Howard of Rising

101: Clause 8, page 10, line 14, at end insert "to 1 year or less"

Lord Howard of Rising: My Lords, Amendment 101 is a probing amendment. It is to discuss the value of establishing a time limit on how long information about subscribers may be kept. I have suggested that there is no reason to hold such information for one year. According to some, this is far too short, given the length of time a civil case takes to move to a resolution. I am more than willing to hear what sort of time would be more appropriate. As the Minister is aware, there are statutory requirements for corporate bodies to retain documentation, and I do not know whether or not keeping this sort of information would come under that. The Government have already indicated that the initial obligations code should include details of this type. What sort of time period is the Minister thinking of? I cannot see any reason why this sort of detail should not be placed in the Bill. I beg to move.



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Lord Young of Norwood Green: My Lords, the effect of the amendment tabled by the noble Lords, Lord Howard of Rising and Lord De Mauley, would be to expand the existing subsection (1)(d) in Clause 8 so that, rather than it being a general requirement for the code to limit the time for which internet service providers keep information, this would be capped by a maximum timescale of one year or less. It is important to remember the nature of the code. The idea and expectation is that this should be drafted by industry, taking into account the concerns and interests of consumers. I stress that; sometimes we lose sight of that important safeguard. This is the real involvement of stakeholders. As such, we would expect it to be a pragmatic document, with fairness as well as effectiveness at its core. It is right that there should be a considerable degree of flexibility in what it says and how it works.

Against that, I understand the thinking behind the amendment and the sensitivity over personal information being held for longer than absolutely necessary. It is, in practice, difficult to think of circumstances in which it would be necessary to keep such information for longer than a year. Indeed, there might be something to be said for a shorter period. I am also aware of concerns raised by the consumer magazine Which? about legal action taken on behalf of some copyright owners which could be left hanging for years. It is a fine balance between giving certainty on the period for which information can be kept and allowing those drafting the code sufficient flexibility. Noble Lords will see that this is an issue that the outline of the initial obligations code clearly recognises as one that the code will need to address.

On balance, it is reasonable to leave this as a matter on which we can trust the code to agree a pragmatic solution. Taking into account that, as I said, the stakeholders-both industry and consumer representatives-will be involved in the formation of the code, I hope that, with that assurance, the noble Lord will feel capable of withdrawing the amendment.

Lord Howard of Rising: I thank the Minister for his comments. I do not know what he will think if industry drafts something which is unsatisfactory. It is not always clear that those involved in commerce-this is, after all, a form of commerce-are very good at considering their customers. That is not really their job; it is for the Government to set the parameters within which industry must work. In this case, it would be feasible for the Government to look at some form of time constraint, even if it is not the year that I have suggested. I hope the Minister will look at this before we come to it again. In the mean time, I beg leave to withdraw the amendment.

Amendment 101 withdrawn.

Amendment 102 had been withdrawn from the Marshalled List.

Amendment 103 not moved.

9 pm

Amendment 104

Moved by Lord Lucas

104: Clause 8, page 10, line 17, at end insert-



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"( ) that it makes proper provision for rights of appeal by subscribers concerning notifications (see subsection (1A));"

Lord Lucas: My Lords, I shall speak also to Amendment 109. With rights of appeal, we come to a very important part of the Bill. It seems absolutely clear that where an ordinary person gets caught up in the provisions of the Bill, they will be confused and uncertain. In many cases they will feel that what they have done is not wrong; that they are being chased unnecessarily; that they do not have the information that they require to state their case properly; and that they are faced with a series of technical allegations that they may find difficult to relate to what they have done.

Therefore, we need to be clear, ideally in the Bill, about the rights which somebody who faces accusation under this Bill has by way of clearing their name. Certainly, I would very much like to understand what the Government's proposals are for the timescales involved in this. When we were talking about earlier amendments, we came to the conclusion that this was the only thing on which we could pin the system down and that the question of the number of accusations which had been made was going to be pretty variable and really depended on whether this was a particular person on whom the copyright owners had chosen to light. So the comfort that a citizen has that they will be dealt with properly very much depends on the timescales. When they receive a notification, how long have they got to appeal? How long will the appeal process take? Are we looking at a double-decker appeal; that is, after the first notice and appealing it, is there then, as the noble Lord hinted earlier, a second, tougher letter and an appeal on that before we get to the point when a person's details are actually given to the copyright owners? What exact timescale and process are the Government proposing for this?

Will an appeal process be free to the subscriber, or will he have to pay to go through this process? In other words, will it be a friendly, supportive process where he will feel that he does not need to have legal advice? Will there be limitations on the grounds of appeal? That is a feature of the traffic tribunal, for instance, where there are five stated grounds of appeal. That means that in many cases the tribunal has no ability to exercise common sense, as one of our colleagues on the Liberal Democrat Benches found out a year or so ago. Will there be a definite defence for those subscribers who have done all that they reasonably ought to do-to my mind, "reasonably" for an ordinary individual means something like an hour's work, but what does it mean to the Government-or that they reasonably should do to make sure that they were in a position to prevent the offence complained of; in other words, that their defences had been overwhelmed and they should not be blamed for it? The reasonableness of what we are letting potentially hundreds of thousands of our citizens in for depends on the process of appeal. We have discussed how the accusation and the letters are going to work, and I think that I have a reasonable grasp of that, but I do not have a grasp at all of the quality of the appeal process. I should be very grateful for the Minister's help with that. I beg to move.



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Lord Clement-Jones: My Lords, I speak to Amendment 106. It is worth celebrating that, unlike the English cricket team, we have scored rather more runs tonight than we originally anticipated. We may make rather better progress in the next hour or so than we have of late.

Unlike the measure proposed by the noble Lord, Lord Lucas, this amendment does not so much deal with the substance of the appeal process but the information and advice surrounding it. The intention of Amendment 106 is to ensure that subscribers are able to get information and advice about copyright law and online infringement as well as about the provisions of the Act. It is of paramount importance that whatever changes are brought about by this Bill, they should be implemented only in an environment of extensive public education and information about online copyright. That is a pledge that the Government have given and is something on which I think noble Lords on all Benches agree.

It is clear that many consumers are unaware of the implications of copyright law and may also be unaware of the impact of the Bill. The amendment seeks therefore to ensure that the notification scheme includes provision for consumers to get independent information and advice. We envisage this being delivered by methods such as information on the internet, e-mail, leaflets and perhaps a telephone advice line. There are all sorts of ways in which this education and information can be imparted. That is an essential part of the Bill. We all agree that it is not purely about enforcement but a lot is about culture change. That is what the amendment seeks to do.

Lord Howard of Rising: My Lords, I thank my noble friend Lord Lucas for his amendments, not only for raising the point about information and getting that into the right hands, as the noble Lord, Lord Clement-Jones, mentioned, but for raising the question of the sort of appeals system that would be established under the provisions.

There is so little information available about the sort of process that is envisaged that it is hard to know where to start. I agree, of course, with my noble friend. The appeal should cover the whole scope of the initial obligations code. Much as a notification letter might be considered only as a warning, it is nevertheless the first of three steps towards further action that would potentially end up in court. A subscriber should not be taken down that path if there is no good reason for that to happen.

There can be no justification for any cost falling on a subscriber if he has a successful appeal. If someone has done nothing wrong, yet still receives a notification letter, it is not his fault; it is the fault of the rights holder or the internet service providers, which have failed to correctly identify the infringement. I very much hope that the code will be sufficient to stop such errors occurring, but provision should certainly be made just in case. Mistakes arise-they happen-and it would be quite wrong for legislation such as we are debating this evening not to provide for a remedy in the event of innocent people being accused of misdoings.



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Lord Young of Norwood Green: My Lords, I will start with Amendments 104 and 109. The purpose of the amendments is to add a further criterion to the list for the initial obligations code to ensure that proper provision is made for rights of appeal by subscribers concerning notifications and to set out in more detail what that should be.

I agree with the noble Lord that protecting the legitimate interests of consumers and providing a clear route of appeal for subscribers who feel that they have been wrongly identified is important and must form an integral part of the system. However, I suggest that this is already properly provided for in the existing text and that therefore the amendment is not needed. Requirement for a person to have responsibility for subscriber appeals is clearly set out in the same clause, at proposed new subsection (4)(c), and is not in need of any further explanation in the Bill. The requirement will have to be reflected in the code, which will include ensuring that subscribers are aware of their rights as well as their responsibilities at every stage of the process.

The point was made by the noble Lord, Lord Howard, when he said that the first letter should still have the right of appeal. I absolutely agree with that, because it could be a totally fallacious allegation or there could have been an error and it is appropriate that the subscriber should have the opportunity of correcting that. I shall come on to the question of cost later.

It is also essential that we do not attempt to micromanage everything in this process and that we give clear general direction and leave the interested parties under the aegis of Ofcom to work out the details. When we talked about consultation on the construction of the code, the noble Lord, Lord Howard, expressed concern about industry not getting involved. I gave him an assurance that it was "stakeholders", not "stakeholder", and that there would be consumer representation as well. I hope that, under the aegis of Ofcom, we will get the balance right in the code.

The way in which Amendment 109 specifies how the appeal process would work sets too many precise requirements and leaves too little room for legitimate manoeuvre. I will give an example. It may be appropriate for a small fee to be payable, refundable if the appeal succeeds. As the noble Lord, Lord Howard, pointed out, you should not be punished for lodging a successful appeal. This would deter mischievous appeals intended simply to delay the process. I am not saying that this is the way in which an appeal system should operate; I just give one example of something that might be considered, which is the payment of a small fee that would not be a deterrent and would be refunded if the individual were successful in the appeal. That would conform with natural justice. I make the plea that we should allow room for the details to be sorted out by the people concerned, including Ofcom, who have a duty to look at consumers' interests.

I will move on to Amendment 106, which was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. Providing information on reducing online infringement of copyright, and on how the Bill is intended to work, would not be of great value to

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subscribers. Therefore, that is not worth adding. However, the point that the noble Lord made about information, advice and guidance being available to people is a very good one. I will take it away and come back to him on what we are doing. If we are talking seriously about changing behaviours, which is our first approach, that should be part of the educative process. The Bill already provides that the notifications sent will include information about copyright and its purposes and advice about how to obtain lawful access to copyright works. It is difficult to see what more might be needed. As long as the subscriber has the proper information to know where they stand and what they can do about it, there is little virtue in cluttering things up with a description of the whole process.

I return once again to the concern expressed by the noble Lord, Lord Lucas, about appeal timing. Details of appeal timing are in the code. Areas of appeal are dealt with in subsection (6). We expect that a subscriber could appeal at any point in the process. In practice, they might be more likely to appeal if they were put on the copyright infringement list, but they might, as the noble Lord, Lord Howard, pointed out, appeal when they received the first letter if they felt that they had been incorrectly identified. I understand that point.

The question was raised about whether taking all the appropriate measures that we have advised is a reasonable defence. In our view, it would be a reasonable defence. If the letter tells you, either as an individual or as a communal subscriber, the ways in which you can prevent these infringements from taking place and you undertake all those measures, yet an ingenious hacker finds another way of circumventing them, that is an indication of somebody having taken all reasonable measures and it would be a right and proper defence. In the light of the explanations that I have given, I hope that noble Lords will not press their amendments.

9.15 pm

Lord Lucas: My Lords, I will not harry the Minister at this time of night if he is willing to write to me later, but I really want to know what we are in for when it comes to timescales. The notice arrives at the ISP. The criteria for sending a letter are triggered. What are the timescales from then on? How long does the subscriber have to appeal, if they are going to appeal? How long before a second infringement counts as a second infringement, rather than just a continuation of the first? If the subscriber appeals, how long will that process be likely to last? While the subscriber is appealing, are they exempt from the triggering of a second letter, or will that process run concurrently? I understood from what the noble Lord said that there would be a gentle first letter and a heavier second letter and that, if there was a third infringement, the subscriber would be chucked to the wolves. Is that the correct interpretation?


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