File-sharing crackdown criticised for 'lack of detail'

The government has been urged to give more details on the process that would lead to disconnection of broadband access for unlawful file-sharers, a sanction laid out in the Digital Economy Bill.

In a report published on Friday, the Joint Committee on Human Rights (JCHR) expressed concern at the "lack of detail" given by the bill regarding the process that would lead to broadband users having their connections suspended or having other technical measures imposed, saying this made it "extremely difficult" to assess the human-rights aspects of the process.

"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," the committee wrote in the report, Legislative Scrutiny: Digital Economy Bill.

Specifically, the committee wants to know whether people could be indefinitely suspended, and whether suspended people would be barred from getting internet access from alternative services. They also want to know what standard of evidence and proof would lead to technical measures being imposed.

"It would be helpful if the government could clarify whether 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," they wrote.

The legislation, which is being debated in the House of Lords, would force ISPs to provide reports on copyright infringement, which could then result in account suspension or other technical measures being imposed. The JCHR wants the government to further explain its justification for the technical sanctions.

"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," the JCHR wrote.

Right of appeal
The committee said the bill should be amended to ensure Ofcom assesses the necessity and proportionality of technical measures before they are imposed. The group also called for a provision to ensure the right of appeal to an independent body against inclusion on any infringement list, and a full right of appeal before any technical measures are imposed.

Those making successful appeals should be able to recover all their costs, the JCHR added — a recently added government amendment to the bill proposed a "refundable fee which is set at a low enough level not to scare off subscribers but is high enough to deter purely mischievous appeals".

The committee also commented on Clause 17 of the bill, which would give the business secretary powers to change existing copyright law in order to keep up with developments in file-sharing technology. Lord Mandelson, the present business secretary, watered down the clause in January, with an amendment that made such changes subject to greater parliamentary scrutiny, but the JCHR said the clause remained "overly broad".

Mandelson's newly introduced "super-affirmative procedure" was welcome, the committee said, but the government 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".

A spokeswoman for Mandelson's Department for Business, Innovation and Skills told ZDNet UK on Friday that the government has always been clear that its proposals to deal with unlawful file-sharing should not contravene human rights.

"There will be no technical measures imposed at all if the initial measures taken are as successful as we expect," she said. "In any case, slowing down or suspending people's broadband would only be invoked following several clear warnings."