New powers to tackle illegal file-sharing need clarifying says Committee

05 February 2010

Parliament’s Joint Select Committee on Human Rights says the Government’s response to the problem of illegal file-sharing in the Digital Economy Bill may have created over-broad powers and that some provisions in the Bill are not specified in enough detail to ensure that they will operate in a way which does not risk a breach of individual rights.

The Digital Economy Bill has been introduced to update the regulation of the communications sector. The committee focuses on a single issue – new provisions around illegal "file-sharing" when people share and download copyright material without payment to the copyright holder.

The Committee’s main concern rests with a new power to require Internet Service Providers - ISPs - to take "technical measures" in respect of account holders.

The Government intends to use these powers in relation to internet users who have been the subject of "copyright infringement reports". The reports are another new measure in that Bill that allows the copyright holder to notify the ISP when it appears copyright has been infringed.

The Committee says the scope of the "technical measures" powers - which have the potential to breach internet users’ rights to respect for correspondence and freedom of expression - has not been sufficiently specified to allow for an assessment of proportionality.

The Committee also has particular concerns about the new power in Clause 17 that allows for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by secondary legislation, a provision that has been the subject of much criticism.

In correspondence with the Committee, the Secretary of State explained that the Government intended to introduce amendments to limit the power and to use the special 'super-affirmative' procedure to ensure that changes are better scrutinised by Parliament. Despite this the Committee remains concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate.

The Committee says the copyright infringement reports are unlikely by themselves to "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" and calls on Government to explain why the measures are proportionate.

Andrew Dismore MP, Chair of the Committee, said:

"Illegal file sharing is itself a breach of important rights, but the concern we have with this Bill is that it lacks detail. It has been difficult, even in the narrow area we have focussed on, to get a clear picture of the scope and impact of the provisions.

"The internet is constantly creating new challenges for policy-makers but that cannot justify ill-defined or sweeping legislative responses, especially when there is the possibility of restricting freedom of expression or the privacy of individual users."

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