The Digital Economy Bill

The controversial Digital Economy Bill has now passed the House of Lords and is now likely to become part of the Parliamentary 'wash up' process before dissolution of Parliament:

The Digital Economy Bill is now expected to be rushed through the Commons before the general election.

The bill, put forward by Business Secretary Lord Mandelson, has been welcomed by the music industry because it includes plans to suspend the internet accounts of people who persistently download material illegally.

The draconian copyright bill which is warmly welcomed by the music industry was proposed not long after Lord Mandelson had dined with record exec David "You're so vain" Geffen - a coincidence I'm sure.

The problem is, as I blogged here, the bill is likely to be in breach of EU law. The provision to cut off internet access without a fair trial could run foul of the EU Telecoms Reform which contains this:

With regard to any measures of Member States taken on their Internet access (e.g. to fight child pornography or other illegal activities), citizens in the EU are entitled to a prior fair and impartial procedure, including the right to be heard, and they have a right to an effective and timely judicial review.

However, the bill may also run into further problems because there's also another possible breach as well. The bill contains this (my emphasis):

124A Obligation to notify subscribers of copyright infringement reports

(1) This section applies if it appears to a copyright owner that—

(a) a subscriber to an internet access service has infringed the
owner’s copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another
person to use the service, and that other person has infringed
the owner’s copyright by means of the service.

This means places such as universities, libraries, and small businesses, like coffee shops that offer free Wi-Fi hotspots, would effectively be held responsible for the actions of customers that use its networks, even if it was password-protected. They would become responsible for customers' alleged copyright infringement.

But this may break EU law as well, specifically EU Directive 2000/31/EC, which gives network providers immunity from liability for the actions of their users even if they are ignorant of those actions. Article 14 of the Directive states:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

and Article 15 makes clear that there's no general obligation to monitor:

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

So there's scope that the bill might be challenged should it pass. A potential mess.

It's all rather dispiriting. An unelected Lord, with form on being less than candid, proposes laws which rides roughshod over civil liberties, directly benefiting those that had lunch with him, but which might then conflict with other laws passed by a foreign government entirely unaccountable to the people.

With just over 7 weeks to an election you have to wonder where the voters are in all this.