After writing to Lord Clement-Jones asking him to reconsider his backing of the deeply damaging UK Digital Economy Bill, here is the response I got. As it is a "standard reply", I do not think I am breaking any copyright laws in reprinting it. However, I may in the future.
Dear Dr Boast
Forgive the standard reply but I have had a few emails to reply to on this subject as you can imagine. If you have further queries having read this, don't hesitate to contact me again.
Thank you very much for your email concerning an amendment passed in the House of Lords to the Digital Economy Bill on the issue of site blocking on the internet. I hope I can 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. The Lords’ 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 it was felt important to 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, the 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.
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.
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.
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).
Given the speed with which this amendment was drafted, it is quite possible that the wording can be improved and I would welcome any suggestions you have on this point. You can be assured that the 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 DCMS team has 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.
Many thanks again for taking the time to contact me on this important issue.
This was my reply to Lord Clement-Jones:
Dear Lord Clement-Jones,
Thank you for the extended reply, and I do know most of these points already. The point you fail to deal with, however, is that contrary to any other service sector, this legislation places liability onto the service provider. I don't think that a piece of legislation would get very far if it included an amendment forcing mobile phone or landline operators to police the use of all phones. If someone is violating the law, copyright or not, by using a landline or mobile phone, the service provider is not liable the perpetrator is. If someone is using a leased property for illegal activity, the landlord is not liable the perpetrator is. Yet this legislation requires the ISPs to both police the service, the job of the police, and be liable for illegal activity that they are not complicit in. This is draconian by any standard and will force the internet into a downward spiral. Just at a time when this country should be investing in increased capacity and greater inclusion, this legislation will force many grassroots ISPs off-line. I ask you again to rethink you support for this legislation as a whole. We can do much better than this -- we must do much better than this.
Let us all hope that this transparent mockery of justice will fail.