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Although I will not divide the House at this point, I will reconsider the issue in the light of any amendments that are made to Clause 13 and associated clauses. However, I suspect that I will ask the Government to return to this. The credibility of the process in this House and among subscribers and others outside will depend on whether we have a controlled process. Do we have a process that takes account of progress towards convincing users of the desirability of moving to lawful systems? Do lawful systems exist to the extent that they are usable-in terms of price, availability and flexibility? In other words, is progress to the desired goal of moving to lawful systems in sight of being achieved or has technology overtaken us, making it less likely to be achieved? The problem of unlawful
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5.45 pm
82: Clause 11, page 13, line 40, leave out from "if" to end of line 44 and insert "-
(a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and
(b) taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.
( ) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force."
Amendments 83 and 84 not moved.
Clause 12 : Code by OFCOM about obligations to limit internet access
Clause 13 : Contents of code about obligations to limit internet access
86: Clause 13, page 15, line 6, at end insert-
"(aa) that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);"
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87: Clause 13, page 15, line 16, at end insert-
"( ) that those provisions do not have a significant adverse effect on legitimate users;"
Lord Howard of Rising: My Lords, Amendment 87 is designed to ensure that technical obligations are not imposed on relevant subscribers without an appreciation of the impact that they will have on other users. The word "user" is deliberately chosen in this amendment, as in many cases there may be more than one user of an internet account other than the named subscriber-for example, on communal internet accounts, when many users are channelled through a single subscription account. Regardless of whether a subscriber will be able to protect his or herself from technical obligations by setting up reasonable measures to protect against unlawful fire-sharing, it would be welcome to have some reassurance that no technical obligations will be imposed without consideration for those who may well be the majority, who utilise the subscription responsibility. Paragraph (f) requires the code to ensure that the technical measures are proportionate. Can the Minister confirm that the number of users who would be impacted will be taken into account when deciding what sort of technical measure should be imposed? I beg to move.
Lord Young of Norwood Green: My Lords, while I have much sympathy with the objective of ensuring that people who have nothing to do with online infringement of copyright are left in peace to enjoy all the riches that the internet has to offer, I do not think that this is an amendment that we should accept. One practical difficulty with it would be defining precisely what we mean by "legitimate users". For example, does this mean that it applies to users of accounts not subject to copyright infringement reports, or is this about people who have not infringed in households where the account is subject to copyright infringement reports? Certainly, I would expect that we could tie ourselves into legal knots trying to be clear what we mean, and we may not in any case agree precisely what scope the amendment is supposed to have. Fortunately, I do not think that the amendment is really necessary.
The other criteria within clause 13(1) serve to ensure that the provisions are properly targeted and focused, and in particular that they are objectively justifiable, not allowed to discriminate unduly against particular people or categories of people, and are proportionate to their purpose. This is certainly sufficient to ensure that subscribers who are not involved in online infringement of copyright have nothing to fear from these provisions. We have outlined the appeal procedures and what we feel would be reasonable measures to protect accounts against lawful infringements. We have taken a number of considerations into account. I hope that in the light of that and the practical definitional difficulties, the noble Lord will feel able to withdraw the amendment.
Lord Howard of Rising: I thank the Minister for his reply and appreciate the difficulties in defining something such as this. I am glad to have on record his reassurance
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91: Clause 13, page 15, line 32, leave out from "costs" to "the" in line 33 and insert "incurred by OFCOM in administering and enforcing"
93: Clause 13, page 15, line 35, leave out from beginning to "may" in line 6 on page 16 and insert-
"(4) The provision made concerning enforcement and related matters"
97: Clause 13, page 16, line 21, leave out from "between" to "; and" in line 22 and insert "persons who are copyright owners or internet service providers"
100: After Clause 13, insert the following new Clause-
After section 124J of the Communications Act 2003 insert-
(1) The requirements concerning subscriber appeals are-
(a) for the purposes of section 124E(1)(fa), the requirements of subsections (2) to (8); and
(b) for the purposes of section 124J(1)(aa), the requirements of subsections (2) to (11).
(2) The requirements of this subsection are-
(a) that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal;
(b) that there is a person who, under the code, has the function of determining subscriber appeals;
(c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM;
(d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.
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(3) The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following-
(a) that the apparent infringement to which the report relates was not an infringement of copyright;
(b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement.
(4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.
(5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done-
(a) the apparent infringement was an infringement of copyright, and
(b) the report relates to the subscriber's IP address at the time of that infringement.
(6) The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that-
(a) the act constituting the apparent infringement to which the report relates was not done by the subscriber, and
(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.
(7) The powers of the person determining subscriber appeals must include power-
(a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is upheld;
(b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and
(c) where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.
(8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.
(9) In the case of a code under section 124I, the powers of the person determining subscriber appeals must include power-
(a) on an appeal in relation to a technical measure or proposed technical measure-
(i) to confirm the measure;
(ii) to require the measure not to be taken or to be withdrawn;
(iii) to substitute any other technical measure that the internet service provider has power to take;
(b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;
(c) to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and
(d) to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM.
(10) In the case of a code under section 124I, the code must make provision-
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(a) enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable;
(b) giving the First-tier Tribunal power, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and
(c) in relation to recovery of costs awarded by the Tribunal.
(11) In the case of a code under section 124I, the code must include provision to secure that a technical measure is not taken against a subscriber until-
(a) the period for bringing a subscriber appeal, or any further appeal to the First-tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appeal or abandoned any appeal); and
(b) any such subscriber appeal or further appeal has been determined or otherwise disposed of.""
Amendments 101 and 102 (to Amendment 100) not moved.
Lord Whitty: My Lords, this amendment is important and seeks to limit the role of the appeal tribunal to judging appeals that are based on process and due cause, whereby the appeal should decide only whether the rights holder and the ISP have conformed to the provisions of the code. In other words, the appeal would be against breach of process. It is difficult to move to an appeal tribunal set up administratively by Ofcom which would have powers that, in other contexts, would be taken by the court. These are, as I said on previous amendments, severe enforcement measures. They would limit access to the internet, and leaving such measures to a decision of an administrative tribunal without going through the formal process would be against normal civil procedure and the rights of the individual citizen to due process.
Wider human rights issues are involved, and the importance of the Government following due process in this regard is reinforced by the EU provisions on the subject, in particular those that apply to communications markets under Amendment 138 to the EU telecoms package-which is not yet fully enforced but which will be enforced by the time that this part of the Bill is brought into operation.
I have argued from Second Reading onwards that sanctions of this order need to be endorsed or imposed by the court process. The clause does not allow for access to the court. It leaves the imposition of sanctions to the new administrative tribunal, the formation and governance of which are not explicit in the Bill but are left to the operational processes of Ofcom. While in many respects I trust Ofcom, it is not right that it should be left to establish a body that in all parallel contexts would be left to the court.
I scratched my head and talked to people, but I failed to find an equivalent case where a potentially very damaging penalty to households and businesses could be imposed without going through the court system. The Government would do well to think again. I am happy for issues of process to be dealt with by the appeals tribunal, but the imposition of sanctions should
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Baroness Miller of Chilthorne Domer: My Lords, I will briefly associate myself with all the remarks of the noble Lord, Lord Whitty. One of the disappointments in the debate is that this House, and our noble and learned friends and others who are normally so good on due process, have not taken more of an interest in the issues. There are human rights issues here. It is very important that we make sure that due process is followed. I hope that the Front Benches will take a particular interest in this issue: they did not in the last amendment moved by the noble Lord, Lord Whitty, which stated that Parliament should have a chance to look at a super-affirmative resolution with regard to the technical measures. I was disappointed not to hear from either Front Bench on that important issue and hope that they will express an opinion on this.
The Earl of Erroll: My Lords, I will make a couple of general comments that apply to the proposed new clause. They concern the appeals procedure, and where laws or rules might conflict. I am afraid that this will get technical: it is for the people behind the Minister. In an IPv4 world, IP addresses are relatively fixed and easy to monitor. What I had not realised until last night is that in an IPv6 world, we go to 128-bit addresses-and that is already coming in. JANET, the educational internet network, has already moved to it. It needs to, because China also uses it. Come the Olympics, we will probably have to move to it for the BT backbone as well. What I had not realised is that multiple IPv6 addresses are issued, some anonymously-they have to be under tier 3 regulations-to people who are going on the internet. Therefore, some stuff will be impossible to monitor. The question is, which rule will be supreme? The appeals procedure will have to take into account-this must be inserted somewhere-the conflict of rules. I put in the technical stuff to highlight the challenges that will be faced. Something must be added at some stage to say that where rules conflict, there must be adjudication and a ruling about which takes precedence.
6 pm
Lord Young of Norwood Green: My Lords, I shall start with Amendment 103. I am surprised that the noble Lord, Lord Whitty, wants to see the removal of this provision, which is there to protect subscribers. It will ensure, so far as is practicable, that a subscriber who has successfully appealed against a notification does not suffer any harm as a result of that particular
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Let us reflect on what will happen under the Government's proposals before a subscriber would become subject to any technical measure: an alleged infringement is detected and matched to his account; a notification is issued and he can contest that; a number of subsequent alleged infringements will have been detected and matched to his account; he will get another notification, which he can also contest; yet further alleged infringements will have been matched to his account, and he will be notified that technical measures will be applied; again, he can contest it. Let us imagine that now he does appeal. The copyright owner and ISP will have to prove that each and every copyright infringement report that led to his being in that position was a genuine copyright infringement and that it was properly matched to his account. It is frankly not credible to suggest that, at that point, there has been an insufficiently rigorous process. Neither can I see what benefit there would be in requiring that a court should look at a case where the subscriber does not appeal but accepts that the notifications are valid and that the measure is properly applied. That was the whole purpose behind building in these appeal procedures at every stage.
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