The Bill would introduce a reserve power for the Secretary of State (currently Lord Mandelson) to impose so-called technical measures as sanctions against copyright infringers. This is commonly referred to as “graduated response” or “three strikes (and you’re off the Internet)”. However this is not how the Digital Economy Bill is written.
Although the Bill obliges ISPs to write to subscribers accused of copyright infringement by rights-holders, there is no link between this process and the introduction of technical measures. So, if the reserve powers are triggered the Secretary of State can order people to be cut off from the Internet without preconditions. He can decide that “technical measures” can be applied to anyone, for whatever reason, in whatever manner he specifies. His order does not even need to be laid before Parliament or made as a statutory instrument (or even published).
That is an enormous power. It is only restrained by the possibility of judicial review and, maybe, being able to persuade a court that an order made exceeded the powers implicitly granted the minister by the bill. Since the bill is a real hotchpotch that is going to be hard.
Disconnection is not an appropriate sanction for copyright infringement. The damage caused by such a punishment would be indiscriminate and collective, imposed on households or businesses rather than an individual infringer, and could be very severe, hampering people’s jobs, businesses or education.
Some questions:
Does an ISP providing notice to a subscriber of possible infringement mean the ISP loses its “mere conduit” defence?
Will the evidence of the alleged infringement be included in letters to subscribers?
Will the accusing party be revealed to subscribers in the letters?
Will letters be sent by post or electronically? If the latter, how will subscribers be able to distinguish a genuine letter from a phishing scam?
The proposal is for 25% of the cost of sending out letters should be borne by ISPs with the remainder being paid by the accusing parties. Is this in the UK’s interest if the accusers are not UK companies but the ISPs are?
The GIST Hub
Disconnection from the internet
The Bill would introduce a reserve power for the Secretary of State (currently Lord Mandelson) to impose so-called technical measures as sanctions against copyright infringers. This is commonly referred to as “graduated response” or “three strikes (and you’re off the Internet)”. However this is not how the Digital Economy Bill is written.
Although the Bill obliges ISPs to write to subscribers accused of copyright infringement by rights-holders, there is no link between this process and the introduction of technical measures. So, if the reserve powers are triggered the Secretary of State can order people to be cut off from the Internet without preconditions. He can decide that “technical measures” can be applied to anyone, for whatever reason, in whatever manner he specifies. His order does not even need to be laid before Parliament or made as a statutory instrument (or even published).
That is an enormous power. It is only restrained by the possibility of judicial review and, maybe, being able to persuade a court that an order made exceeded the powers implicitly granted the minister by the bill. Since the bill is a real hotchpotch that is going to be hard.
Disconnection is not an appropriate sanction for copyright infringement. The damage caused by such a punishment would be indiscriminate and collective, imposed on households or businesses rather than an individual infringer, and could be very severe, hampering people’s jobs, businesses or education.
Some questions: