Conclusions and recommendations
Explanatory Notes and Human Rights Memoranda
1. We
are grateful for the human rights memorandum provided by the Government
and for the further prompt assistance of the Bill Team. However,
although the memorandum provided by the Departments on this Bill
is helpful, and the information relatively full, we generally
invite Government Departments to take a more proactive approach
to justification for proposed interferences with individual rights.
We reiterate our earlier recommendation that Departments should
not rely on Section 6 of the Human Rights Act 1998 to justify
their view that broad discretionary powers in a Bill or in secondary
legislation will operate in a way which is compatible with human
rights. Where necessary, relevant safeguards should be provided
on the face of the Bill to ensure that delegated powers are adequately
defined to afford legal certainty and ensure that Convention rights
will in practice be protected. (Paragraph 1.5)
Copyright infringement reports (Clauses 4-8)
2. 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
(Articles 8, 10, Article 1, Protocol 1 ECHR). The limited impact
on these rights by the operation of the copyright infringement
reporting mechanism proposed is likely to be justifiable. 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. (Paragraph 1.23)
3. In order to consider
how these proposals might operate in practice and to assess the
proportionality of these measures, we have had to rely on the
contents of the Government White Paper, statements during debate
and other documents prepared by the Government Bill Team in order
to envisage how these proposals might operate. In the light of
the fact that the copyright infringement report and any subsequent
list may form the basis for the imposition of technical measures
which will have a more significant impact, we are disappointed
at the lack of detail about the process provided on the face of
the Bill. (Paragraph 1.24)
Technical measures (Clauses 9-16)
4. 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. 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. (Paragraph 1.28)
5. We reiterate our
invitation to the Government to provide fuller justification for
its proposals. (Paragraph 1.38)
6. 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. 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. (Paragraph 1.39)
7. There are a number
of issues which could helpfully be clarified; some on the face
of the Bill, in order to reduce the risk that these proposals
could operate in a manner which may be incompatible with the Convention.
We recommend that the Minister clarify:
a)the precise intended impact of these proposals
on individual accounts, including (i) whether technical measures
may include indefinite suspension of an account and whether any
service limitations imposed will be for a specified time-frame
and/or renewable; and (ii) any potential impact the imposition
of technical measures may have on the ability of a user to secure
an alternative service; (Paragraph 1.40)
b) the minimum criteria which would be required to
be satisfied before the imposition of technical measures. The
Government has indicated that technical measures will follow the
issue of copyright infringement notices. It would be helpful if
the Government could clarify whether (i) the imposition of technical
measures will be subject only to the initial assessment of the
copyright holder that it appeared that the individual service
user had breached his or her copyright; and (ii) if so, would
the same standard of evidence and proof be required for the imposition
of technical measures as would be required for the issue of copyright
infringement reports? (Paragraph 1.40)
8. We recommend that
the Bill be amended to make it clear that technical measures may
only be introduced after an assessment by OFCOM of the necessity
and proportionality of these new measures, taking into account
the impact of the initial obligations code. In so far as it is
possible, we recommend that the Bill should be amended to provide
additional details on the minimum criteria for the imposition
of technical measures, including the standard of proof which must
be applied; the "trigger" for the imposition of such
measures; and any relevant defences for service users who have
taken all reasonable measures to protect their service from unauthorised
use and who have not knowingly facilitated the use of their service
for the purposes of infringing copyright. (Paragraph 1.41)
Right to a fair hearing (Article 6 ECHR)
9. We
accept that there is no clear answer to whether the decisions
taken during the process of issuing copyright infringement reports
and infringement lists involve the determination of any individuals'
civil rights and that it is unlikely that Article 6 ECHR is engaged.
However, in the light of the acceptance by the EU that a fair
process is necessary for regulation of individual service users'
access to the internet, we consider that statutory provision for
a right to appeal to an independent body against inclusion on
any infringement list at this stage would lead to a fairer procedure
and so be a human rights enhancing measure. (Paragraph 1.44)
10. Although there
is very little detail about the appeal mechanism, the enforcement
and reviewing bodies on the face of the Bill, it is our view that,
provided the time frame for review and appeal is adequate and
the measures are routinely suspended until the right of appeal
is exhausted, it is unlikely that these provisions will be structurally
incompatible with Article 6 ECHR. The provision of a review by
an independent reviewing body and a full right to appeal before
the First Tier Tribunal, prior to the imposition of any sanction
is adequate to meet the requirements of the Convention for a hearing
by an independent and impartial tribunal. (Paragraph 1.48)
11. 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 substantive decision making process for the imposition of
technical measures and its compatibility with Article 6 ECHR and
the common law. We recommend that at a minimum, the Government
must be required to confirm that the First Tier Tribunal will
be able to consider whether an infringement of copyright has occurred
and any defence that no infringement of a copyright holders' rights
has been committed or knowingly permitted by the account holder.
Further information about the quality of evidence to be provided
and the standard of proof to be applied should be provided, ideally
on the face of the Bill, and at a minimum by the Minister during
the course of debates on these provisions. In addition, we recommend,
for the avoidance of doubt, that the Bill require that the technical
obligations code must provide for any appeal rights to suspend
the application of technical measures and for costs of any successful
appeal to be recoverable by any successful applicant. (Paragraph
1.50)
Reserve powers (Clause 17)
12. In
the light of the breadth of this proposed reserve power and the
need for a delicate balance to be struck between the right to
freedom of expression and the property rights of copyright holders
in any changes to copyright law, we are concerned that Clause
17, as amended, remains overly broad. (Paragraph 1.55)
13. We welcome the
Government's decision to introduce the use of the super-affirmative
procedure. However, we recommend that:
a) The Minister should explain why parliamentary
scrutiny of any relevant human rights issues will be adequate
without any power for Members of either House to propose amendments
to the draft order. (Paragraph 1.56)
b) Any explanatory memorandum accompanying an order
made under Clause 17 should include an assessment of the Government's
view on the compatibility of the proposals with the human rights
obligations of the United Kingdom, including the European Convention
on Human Rights. (Paragraph 1.56)
c) The Government should be required to clarify which
Committees it would consider 'charged' to report on any relevant
proposal, other than the Joint Committee on Statutory Instruments
(JCSI). We are not required to report on any secondary legislation
other than remedial orders laid under the Human Rights Act 1998,
but we do report from time to time on proposals in secondary legislation
which we consider raise particular human rights concerns. We would
be grateful if the Government would explain how a negative recommendation
from our Committee or its successors would affect the Government's
approach to an order. (Paragraph 1.56)
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