"The Secretary of State may at any time by order impose a
technical obligation on internet service providers," says the Bill.
'Technical measures' is the term used to denote action relating to
a connection up to and including disconnection.
“Better protecting our creative communities from the threat of
online infringement will ensure existing and emerging talent is
rewarded and will bring new choices for online consumers," said
Business Secretary Lord Mandelson.
The proposal does not contain the court oversight promised just
last month by Culture Secretary Ben Bradshaw. He told MPs and Lords
that "there would need to be a court order for any of the technical
measures".
Connections will be terminated without the oversight of a judge
or court, though. Users of any terminated connection will have to
appeal if they object to the action. A body established by Ofcom
will hear the appeals, though the legislation leaves that role open
to non-Ofcom bodies if nominated by Government.
ISPs have opposed the plans, claiming that they undermine a
person's right to be treated as innocent until proven guilty and
that they will impose an administrative and financial burden on
them.
Talk Talk has said that it will refuse to disconnect subscribers
unless a court has ordered it to, and that it will defend its
actions in court. BT has said that it has concerns about the
proposed law and what it means for individuals' rights.
The Bill has been welcomed, though, by groups representing
record labels and musicians, who have said that it will lay a basis
for a sustainable UK music industry.
Digital activists have long opposed termination of connections
used by accused illegal file-sharers because of the lack of court
oversight involved in UK plans and also because of the damaging
effect it will have on the other people who use that connection,
such as other household members.
"People’s rights are at stake. The Bill doesn’t require any test
of evidence before harsh punishments are imposed on people accused
of copyright infringement, and opens the door to a ratcheting up of
unwarranted powers without democratic scrutiny," said Jim Killock,
executive director of digital rights lobby group the Open Rights
Group. "There is a massive swell of action against this Bill, led
by creators, citizens and people working in digital industries, who
are outraged by this attempt to hijack our rights.”
The Digital Economy Bill largely implements the recommendations
of the Digital Britain Report, itself the result of a long
consultation process on how to help the UK's digital economy
thrive.
That Report, though, did not recommend the termination of
internet connections used by suspected illegal file sharers. That
proposal was added later at the instigation of Lord Mandelson's
Department for Business, Innovation and Skills.
The governing bodies of the European Union have agreed in
principle a reform package of the EU laws governing the telecoms
industry. The European Parliament had wanted a prohibition on
countries passing laws that allowed for disconnection without a
court order but it was advised by its own legal service that such a
law was outside of the powers of the European Community.
It has been claimed that the reformed Telecoms Package would
stop the UK passing the Digital Economy Bill, but intellectual
property law specialist John
MacKenzie of Pinsent Masons, the law firm behind OUT-LAW.COM,
said that the EU proposal would allow the Bill to become law.
"The Directive if passed will require a process to be followed
before disconnection takes place," he said. "That gives Member
States a lot of flexibility for policies like
three-strikes-and-you're-out. It doesn't demand a right to a trial
before disconnection takes place."
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