Out-Law News 2 min. read
17 Mar 2010, 1:59 pm
The amendment to the Digital Economy Bill was proposed by Conservative Party peer Lord Howard of Rising and Liberal Democrat peer Lord Clement Jones. It sought to award courts the power to force ISPs to block access to websites accused of hosting copyright-infringing material.
Though that amendment has now been dropped in the Lords, a Government minister has said that a new amendment with the same aim will be backed by the Government when the law passes to the House of Commons.
The amendment replaced a much-opposed measure in the Bill that gives ministers the power to amend copyright legislation without full Parliamentary scrutiny.
The move provoked outrage, with web publishers and ISPs claiming that it had "obvious shortcomings" and was not a well-considered proposal.
They said that it "would both widely disrupt the internet in the UK and elsewhere and threaten freedom of speech and the open internet, without reducing copyright infringement as intended", according to a letter they wrote to the Financial Times.
The Government told the House of Lords in the Bill's final reading there that the proposal would be impossible to enforce legally. Lord Clement Jones withdrew the amendment, meaning that it will not be considered now that the proposed legislation has passed to the House of Commons.
Lord Young of Norwood Green, the Government's spokesman for the Department of Business, Innovation and Skills, told the Lords that the amendment would not be usable, but that the Government would come up with a redrafted version that could be used.
"At a purely practical level … this is not compatible with the technical standards directive and will not be capable of being enforced," he said. "Furthermore, as the industry, public and media response over the past 10 days has made clear, this measure needs careful design if we are to avoid significant disadvantages and unforeseen and unwanted consequences to the internet and the digital economy."
"Our intention as the Bill moves to another place [the House of Commons] is to try to bring forward a clause that would ultimately achieve the same effect, but one which could be enforced, by proposing a power for the Secretary of State to bring forward regulations to achieve the desired effect in relation to site blocking," he said. "This would allow for not only proper notification under the technical standards directive but also – this is important – proper consultation and consideration of the evidence for the need for and proportionality of the measure."
Lord Clement Jones withdrew his amendment despite its having been backed by the Lords and said that it was important that whatever new proposals the Government came up with, they were not a reintroduction of the controversial ministerial powers contained in the Bill's Clause 17, which his amendment replaced.
"I take it from the Minister – and hope that this is the case – that this is not a reintroduction of Clause 17 but a much more targeted approach to consulting over regulations with a specific target," he said in the Lords.
Lord Clement Jones said that more consultation was necessary, and that he accepted that his failure to consult was a failing of his proposal.
"We on these Benches have had many representations from all sides of the argument that there should be a full and proper consultation period," he said. "I hope that this will not be just a quickie in the course of the next few months but that all stakeholders will be consulted. I accept that as a criticism of the amendments which we put forward from these Benches and I hope that the Government do not make the same mistake."
