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MPs, Lords ask if Mandybill is human rights friendly

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The Government must provide more detail on exactly how alleged copyright infringers will be cut off from the internet before a file-sharing disconnection law is passed, according to a parliamentary committee.

The Joint Committee on Human Rights has said that the Government must make the Digital Economy Bill more detailed to allow Parliament to scrutinise it properly. It said it could not rule on whether the proposed law was compatible with human rights law until those details were provided.

The Government claims that the controversial Bill complies with the European Convention on Human Rights and the Human Rights Act.

The Committee has said that not only will Parliament need more detail before the Committee can decide on that issue, but that the Government must better demonstrate that even the notification system it proposes in relation to alleged infringers is a proportionate response.

The Bill outlines a system in which copyright owners would identify file-sharing they believe infringes their rights and ask internet service providers (ISPs) to take action. At first this would come in the form of warnings, then it would be the cutting off of whatever internet connection was used by the alleged infringers.

The Committee said that the disconnections may or may not interfere with people's rights to privacy and freedom of expression, but that it was impossible to tell on the scant information contained in the Bill itself. The Bill refers to disconnection as 'technical measures'.

"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," said the Committee's report. "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."

The Bill is entering the Report stage of the legislative process at the House of Lords, having been through the Committee stage there. It is yet to pass through the House of Commons.

The Committee said that it was a possibility that disconnection would breach citizens' human rights.

"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," said the report. "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."

The Committee said that there are potential problems even just with the Bill's proposal to send warning notices to people identified as potential copyright infringers. Though this was not likely to infringe their rights, it was not clear that the action was in proportion to the alleged offence, it said.

"We consider that despite the lack of information on the face of the Bill, it is unlikely that the operation of these proposals alone will 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," it said.

"However, in the light of the concerns raised by internet users and human rights organisations, we recommend that the Government provide a further explanation of its views on why these proposals are proportionate, including by outlining the harm currently suffered by individual copyright holders and the wider public interest in promoting creativity, and why that harm cannot be appropriately addressed by existing civil and criminal penalties for copyright infringement," said the report.

In a letter to the Committee, Business Secretary Lord Mandelson defended the plans and said that the sending of warnings would not infringe citizens' rights to privacy and freedom of expression (Articles 8 and 10 respectively) of the European Convention on Human Rights.

"Articles 8 and 10 are qualified rights and it is acceptable under the Convention to interfere with these rights if it is in accordance with the law and it is necessary in a democratic society for the protections of the rights of others," he said. "As mentioned above the receipt of a notification does not impede the subscriber’s access to the internet in any way."

Lord Mandelson told the Committee that he agreed that the cutting off of internet accounts used by suspected file sharers was likely to affect those rights, but that it was justified.

"Technical measures will hinder or deny subscribers’ access to the internet and their email correspondence so that their right to freedom of expression and private and family life may be affected," he said. "No one has an unconditional right to access the internet. If a subscriber does not pay a bill the ISP will eventually cut him off. The Government believes that the measures will be an acceptable balance between the subscriber’s rights and the public interest in the protection of the interest of the copyright owners."

The Government considers that this will be legitimate and proportionate action and is necessary for the protection of the right of copyright owners," said Lord Mandelson. "The latter have limited methods of protecting copyright and these methods may be less effective across national boundaries than within a single jurisdiction. Infringement over the internet is likely to cross national boundaries. These provisions will enhance the effectiveness of copyright protection."

The Bill will reach the Report stage in the House of Lords on 1 March.

See: The report (101-page/1MB pdf)

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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