One product of the Human Rights Act 1998 is a system for scrutiny of legislation to assess its compliance with the 1998 Act and to highlight any areas of concern. The Parliamentary Joint Committee on Human Rights has produced a report on the Digital Economy Bill, focusing on the proposals for disconnection of copyright infringers, the appeals process and the very broad power for the Secretary of State to amend relevant provisions.
The Committee does not see the Bill or the proposals for disconnection of illegal file-sharers as raising any insuperable difficulties in terms of human rights. But it does raise a series of concerns and calls for further information which may add to the difficulties the government is likely to experience in getting the legislation through Parliament before the impending election.
The Report itself summarises the concerns as follows:
‘Copyright infringement reports
The Bill establishes a mechanism whereby holders of copyright will be able to issue a ‘copyright infringement report’ to an ISP where it appears that the ISP’s service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account.
The ISPs will also be required to maintain a list of account holders who have been the subject of such reports. We consider that it is unlikely that 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 (Articles 8, 10, Article 1, Protocol 1 ECHR). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.
Technical measures
The Bill provides for the Secretary of State to have the power to require ISPs to take “technical measures” in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.
We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is 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. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention.
Right to a fair hearing
The Bill provides for provisions for appeals in codes. There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.
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 process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.
Reserve powers
Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a ‘super-affirmative’ procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.
Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns.’
The full report can be accessed at http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/44/44.pdf.
