Digital Economy Bill: Parliamentarians reply to prospective candidates

Yesterday I covered an open letter from 25+ Liberal Democrat prospective Parliamentary candidates (and see also this comment from ex-MP Richard Allan), expressing concerns over the line the party had taken in the House of Lords on a key part of the Digital Economy Bill. The party’s DCMS (Department for Culture, Media and Sport) team has now replied in turn with another public letter.

Two things to note when reading it. First, this sort of public exchange of letters is unusual, but very welcome. Although journalists sometimes struggle with the concept of a party that debates policy openly and has a democratic policy-making process, that’s a key part of the Liberal Democrat approach.

Second, reading between the lines there is a very big olive branch being offered and the opportunity for a dialogue rather than warfare. Phrases in the letter such as “the Liberal Democrats believe passionately in the neutrality of the web” suggest a significant degree of common ground on both sides of this debate, as does the agreement on all sides that the Government’s original proposals were wrong.

So here’s the letter:

Thank you very much for your letter concerning an amendment passed in the House of Lords to the Digital Economy Bill on the issue of site blocking on the internet.

We hope the following will both explain the background, why some of the concerns that have been expressed are unfounded but also the steps that are being taken to resolve any outstanding issues.

The amendment was tabled to replace Clause 17 which gave the Secretary of State excessive powers to amend copyright law at will in the future with limited scrutiny from Parliament. Our efforts ensured that Clause 17 was successfully deleted from the Bill on Wednesday 3 March.

Conscious, however, that around 35% of all online copyright infringement takes place on non peer-to-peer sites and services we also sought to address this issue. To some extent there is existing legislation regarding site blocking; for example, numerous ticket touting websites were closed by police action in recent months. While further improvements no doubt can be made, our intention was to improve such existing legislation.

Amendment 120A enables the High Court to grant an injunction requiring Internet Service Providers (ISPs) to block access to websites that persist in publishing a substantial amount of copyrighted material despite repeated requests to remove it.

The Liberal Democrats believe passionately in the neutrality of the web; neutrality as far as free speech is concerned and neutrality as far as independence from government is concerned. Indeed, dating back to the Regulation of Investigatory Powers Act the Liberal Democrats have been committed to ensuring the maximum possible freedom on the internet. That remains our position. And we are instinctively loath to give the government any increased power in this area. But we can’t be neutral about illegality. Just as we would all want to prevent shops from selling stolen or counterfeit goods, so too we should want to prevent it happening on the internet.

As it stands, the amendment ensures that an injunction would only be permissible in the following circumstances:

1. Where a site is hosting a substantial amount of copyright material

Sites such as YouTube, Facebook and Google have such an enormous volume of material it would be impossible for a “substantial proportion” of their content to infringe copyright at any one time.

AND

2. Where the site operator has been contacted a number of times and asked to remove the copyright content but has failed to do so

Amendment 120A includes the condition that if reasonable steps have been taken to prevent access to copyright content an injunction would not be permissible. YouTube, for example, has a very good record of checking and removing content that infringes copyright.

AND

3. Where the copyright holder has made a reasonable effort to ensure that there are legal ways of accessing the content online

The amendment is designed to encourage copyright owners to develop innovative new ways for their material to be accessed legally online, such as Spotify. The intention is to discourage legal action from being the first port of call.

AND

4. Where human rights implications, such as the right to freedom of expression, have been taken into consideration by the Court

No injunction would be permitted unless all these conditions were met.

In other words, the amendment is designed to pick up sites that persistently host substantial amounts of copyright content despite being asked repeatedly to take the material down. The business of many of these sites is based on the publication of copyright material but, as they are not based in the UK, existing British law does not apply to them.

Some concerns which have been raised about the amendment include:

1. YouTube or Google (or similar sites) would be blocked –

This clearly couldn’t happen (see points 1 & 2 above)

2. Site operators won’t be notified of an injunction application –

An injunction is not permissible unless the site operator has already been contacted and asked to remove illegal material, and refused to do so (see point 2). So concerns that site operators would not know of the threat are unjustified.

3. Sites like blogs that host other people’s comments might publish illegal material inadvertently and therefore be targeted by ISPs –

For a website to be threatened with an injunction, the illegal content would have to form a “substantial” part of all the material on the website (see point 1) AND the site operators would need to have refused repeatedly to remove the content.

4. Cyberlocking sites which are used to publish copyright content could be blocked –

The same conditions about “substantial” amount of copyright material and repeated refusals to remove or block copyright content would apply to cyberlocking sites as to any others (see points 1 & 2 above).

However, we acknowledge that with the shortness of time available and need to work with other parties to defeat the Government and remove Clause 17, it may be that the wording agreed at this stage can no doubt be improved. And opportunities exist to achieve this.

Liberal Democrats will continue to seek to do all we can to ensure that the rights and freedoms of internet users are protected to the maximum possible extent. The team from both Houses have invited some leading bloggers and the Open Rights Group as well as representatives from key members of the industry to a round table to work out how we can best make this happen.

Thanks again for taking the time to contact us on this important issue.