Friday, February 05, 2010

UK Parliament Human Rights Committee critical of 3 strikes element of Digital Economy bill

The Joint Committee on Human Rights has just published its Legislative Scrutiny: Digital Economy Bill (Fifth Report of Session 2009-10) and criticises the provisions relating to at UK 3 strikes regime which would lead to internet services being terminated for suspected file sharers.  From the conclusions:

"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
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)...
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)"
Translation: Writing a law that says 3 strikes will be implemented without specifying how, why, where, when, by whom, under what authority and what kind of due process and pre-cutoff appeal mechanism will be provided is unacceptable.   The comittee also criticises the government over the notion that clause 17 would give a government minister the power to change copyright law when they felt like it without recourse to parliament.

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