Committee (3rd Day) (Continued)
Digital Economy Bill [HL]
7:40 pm

Amendment 94

Moved by Lord Clement-Jones

94: Clause 6, page 8, line 28, at end insert "and that internet service providers and copyright owners have consulted formally with consumer representatives"

8:10 pm
Photo of Lord Clement-Jones

Lord Clement-Jones (Liberal Democrat)

After that generous break, I am sure that we are all refreshed and raring to go for the next two hours. I shall speak also to Amendment 100 as these amendments relate to the same matter. It is important to ensure that any code drawn up by the industry, ISPs, copyright owners and other stakeholders is drawn up in consultation with consumer representatives. The essence of these amendments is to seek reassurance from the Government that any industry code approved by Ofcom has been subject to consultation with relevant consumer representatives, organisations and so on. I hope and think this would help to ensure that the code is consumer-friendly, which I am sure is the Government's intention. I beg to move.

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

Before speaking to this amendment, I declare an interest. I had planned to declare it when we got to the relevant part of the Bill, which I believe to be Clause 42. I am the literary executor of a literary estate and, as such, have an interest in certain copyright matters.

I am under the impression that under the existing provisions of the Communications Act 2003, Ofcom must consult on virtually everything it does. Can the Minister reassure the Committee that those provisions will extend to these clauses after the Bill is given Royal Assent and that those parts of the Communications Act that make Ofcom consult will not find that they have been left behind.

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Lord Davies of Oldham (Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

I am grateful to the noble Lord, Lord Clement-Jones, and to the noble Lord, Lord Howard, who has effectively taken 50 per cent of the reply that I was intending to give to this amendment.

I can see why the amendment has been put forward. It is clearly important that the views of consumers are taken into account when the initial obligations code is formulated. Under subsections (11) and (12) of new Section 124C, Ofcom will be obliged to consult on any initial obligations code before approving it. As the noble Lord, Lord Howard, has astutely identified, the Communications Act already obtains in this respect. Under Section 403 of that Act, which is applied by subsection (8) of new Section 124D to an order by Ofcom making a code, Ofcom is in any case bound to consult formally with representatives of affected persons. I hope the noble Lord, Lord Clement-Jones, will appreciate that we have belt and braces with regard to consultation as far as Ofcom is concerned in this respect and that he can safely withdraw his amendment.

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Lord Clement-Jones (Liberal Democrat)

I thank the Minister for what is probably the most reassuring response to date. It is very helpful and demonstrates that my probing amendment has been entirely successful. I beg leave to withdraw the amendment.

Amendment 94 withdrawn.

Amendment 95

Moved by Lord Howard of Rising

95: Clause 6, page 8, leave out line 29

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

This is a probing amendment to see whether Her Majesty's Government have thought through the impact that the introduction of one new obligations code may have on existing commercial transactions between internet service providers and rights holders. If an internet service provider and a rights holder have come to a commercial arrangement to tackle illegal peer-to-peer file-sharing with which both parties are content, will that arrangement have to be torn up if it does not meet the standards set within the code? If that has to happen, what would be the situation if they were not able to come to a new agreement that satisfied the code? They might even find themselves going to court to clarify matters. Surely private commercial arrangements should be encouraged as a way of dealing with this sort of problem. Government action that might impede making such arrangements is very undesirable. Quite apart from the practical difficulties that I have highlighted, which might arise, there is also the situation where a single company is both the rights holder and an internet service provider. Will it have to make reports, notifications and lists in the same way?

I can see the attractions of a single universal code-there are obvious advantages-but it would seem difficult to draft such a code that would apply to all situations without finding that problems had been created en route. We are back to the old law of unintended consequences. I look forward to hearing from the Minister that these things have been thought through and of how they are to be dealt with. I beg to move.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, the amendment tabled by the noble Lords, Lord Howard of Rising and Lord De Mauley, would allow more than one approved code on the initial obligations to be in effect at any one time. This would not be beneficial to any of the parties. It is important for everyone to know to which code they are operating at any time, and having more than one could lead to confusion and unnecessary duplication of effort.

If the noble Lords are thinking of the situation in which technical measures may have been required, it is already possible under new Section 1241(2) in Clause 12 to introduce a single new or amended code to cover both the initial obligations and the technical measures. The line which the noble Lords propose to delete refers to the initial obligations code.

Having said that, I congratulate the noble Lord, Lord Howard, on going in a totally different direction that is not covered by my speaking note: the commercial arrangements between a rights holder and an ISP. I hope the Box will confirm that stakeholders will be involved in the creation of the code. I am getting an affirming nod, which is always comforting when I think that I am winging it.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

Would it help the Minister if I interrupted him for a moment?

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

The offer is appreciated. Thank you.

The key answer to the noble Lord's question is that we need to involve stakeholders in the creation of the code. I take his point; I was not aware of a scenario in which the rights holder could also be an internet service provider, but now he mentions it I concede that it is a possibility. It is not a good idea to have more than code; there should be one code. If and when we introduce the technical measures, we want them to be incorporated into an amended code. I assure the noble Lord that stakeholders will be involved in the compilation of the code. These are the kinds of issues that need to be addressed.

With that explanation and assurance, I hope that the noble Lord will feel confident about withdrawing the amendment.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

I thank the Minister for his remarks. As I said, I can see the advantages of one code, which he explained so eloquently even though he had to go out on a limb. He did not address how he would deal with agreements that have been made before the code comes in and which then break the code: in other words, where two parties make an agreement between themselves which the code, when it comes along, makes invalid. As he has said, he has not come across the idea that you can be both an ISP and a rights holder. Perhaps at some future time he can cover these two eventualities in writing. Either of them could create difficulties and I am sure that they could be cleared up now if they were addressed. I beg leave to withdraw the amendment.

Amendment 95 withdrawn.

Amendments 95A and 95B

Moved by Lord Young of Norwood Green

95A: Clause 6, page 8, line 31, after "may" insert "by order"

95B: Clause 6, page 8, line 36, leave out "approval or withdrawal" and insert "order"

Amendments 95A and 95B agreed.

Amendment 96

Moved by Lord Clement-Jones

96: Clause 6, page 8, leave out lines 38 and 39

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Lord Clement-Jones (Liberal Democrat)

Amendment 96 seeks to remove the requirement for Ofcom's approval of a code, or a modification to an approved code, to be overseen by the Secretary of State. Surely Ofcom should be empowered to fulfil its duties under the Bill without being second-guessed by the Secretary of State. Clause 6 is similar in intent to Section 121 of the Communications Act, on the approval of a code for a premium rate, which includes no similar provision for the Secretary of State to approve the code. Surely it is unnecessary and overbureaucratic, and will serve no relevant purpose, to have such a power in the Bill. I beg to move.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, Clause 6(10) requires the consent of the Secretary of State to the approval by Ofcom of any code about the initial obligations or any modification of such a code. This amendment would remove that requirement. I note, for completeness, that Clause 7 also requires the consent of the Secretary of State if Ofcom is to make or amend a code. This amendment would not affect that provision.

The code that Ofcom will be approving or making will form the framework by which the obligations in this section of the Bill come to life. In particular, the code will contain the provisions that are required by any order made under Clause 15 in relation to costs. Many of the issues dealt with in the code will be controversial, not least the detail of how the cost-sharing provisions are translated into practical arrangements. It seems appropriate that the Secretary of State should have some element of oversight to ensure that the code deals appropriately with these issues. We do not see this as an unnecessary intervention. We see it as an appropriate and reasonable oversight, which is not peculiar to this legislation. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

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Lord Clement-Jones (Liberal Democrat)

My Lords, I thank the Minister for his response, although I thought that it was a fairly limp reply and not wholly convincing. If given half the chance, I am sure that he could do better than that. Clearly, there are precedents where the Secretary of State has not had that power and where Ofcom purely has had the power. Is it not time that the Secretary of State should not have to look over the shoulder of Ofcom all the time? Is this not an example where that should be the case? We will obviously consider that extensive response in the fullness of time. But given the need to press on with further business, I beg leave to withdraw the amendment.

Amendment 96 withdrawn.

Amendment 96A

Moved by Lord Young of Norwood Green

96A: Clause 6, page 8, line 40, leave out from beginning to end of line 3 on page 9 and insert-

"( ) An order made by OFCOM under this section approving a code or modification must set out the code or modification.

( ) Section 403 applies to the power of OFCOM to make an order under this section.

( ) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.""

Amendment 96A agreed.

Clause 6, as amended, agreed.

Clause 7 : Initial obligations code by OFCOM in the absence of an approved code

Amendment 97

Moved by Lord Howard of Rising

97: Clause 7, page 9, leave out lines 8 to 14 and insert-

"( ) OFCOM must by order make a code for the purpose of regulating the initial obligations if-

(a) it appears that no code will be approved under section 124C within six months of section 124A and 124B coming into force; or

(b) OFCOM has withdrawn their approval of a code under section 124C."

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, Amendment 97 seeks to provide a six-month window of opportunity for rights holders and internet service providers to come up with their own initial obligations code before Ofcom moves in and enforces one on them. As I have previously indicated, we believe that a code is more likely to have widespread support and confidence if it is negotiated between the industries themselves. Ofcom should impose a code only as a matter of last resort. It is infinitely preferable for people to do it themselves and probably more likely to work.

However, we recognise that voluntary agreements in the past have taken a lot of time to be agreed. In some cases, discussions have come to an impasse as those involved have failed to come to a mutually satisfactory agreement. As such, the threat of an Ofcom imposed code that would come into force if industry had not agreed one within six months should be retained. I am sure that that would act as a considerable spur to the industry to sort things out for itself without having to involve anyone else. I beg to move.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, Clause 7(1) and (2) requires Ofcom to make a code by order if it has not been able to approve an industry code within six months of new Sections 124A and 124B of the Communications Act 2003 coming into force. Subsection (2) also allows Ofcom to make a code by order before that six-month period has passed. This amendment would remove that time constraint on Ofcom. It would also require Ofcom to believe that no code would be in place, either because there was no code to approve or because Ofcom had revoked such an approval.

My concern about this amendment is that it risks losing the urgency that I think we all see here. It is important that we should move forward as quickly as we can to introduce these initial obligations and start having an impact on online copyright infringement. It seems to me, therefore, that it is important that we should put pressure on the industry and Ofcom to get a code in place, and action under the code, as soon as possible. I believe that it is important to set Ofcom a clear goal as to when it needs to ensure that a code is in place. However, noble Lords will see from the Marshalled List that we in government have become aware of a potential issue in relation to timing and that we are bringing forth our own amendment to allow for the deadline to be changed should it be necessary for circumstances outside Ofcom's control. However, I do not think that it would be sensible simply to remove the deadline, as this amendment would do. In the light of that explanation, I hope that the noble Lord will withdraw the amendment.

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

I thank the Minister for his remarks. Urgency is good, and dealing with issues promptly and efficiently is nothing but a good thing. However, too much haste can lead to mistakes and, indeed, some would argue that this Bill is an example of that. Some of the points we have been discussing in Committee are the result of drafting which has been done in too much of a hurry. But that having been said, I beg leave to withdraw the amendment.

Amendment 97 withdrawn.

Amendment 98

Moved by Lord Faulkner of Worcester

98: Clause 7, page 9, leave out lines 12 to 14 and insert-

"(2) OFCOM may but need not make a code under subsection (1) for a time before the end of-

(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or

(b) such longer period as the Secretary of State may specify by notice to OFCOM.

(2A) The Secretary of State may give notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b)."

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Lord Faulkner of Worcester (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am proposing this amendment to Clause 7 to make a necessary change to the Bill, and it follows what my noble friend Lord Young has said on the previous amendment. New Section 124D as drafted has the effect of requiring Ofcom to have either approved or made by order a code covering the initial obligations code within six months of new Sections 124A and 124B coming into force. Those sections are introduced by Clauses 4 and 5 which, like the majority of the clauses in the Bill, come into force two months after Royal Assent. In other words, Ofcom will have to approve or make an initial code no later than eight months after the Digital Economy Bill receives Royal Assent.

We put this deadline into the Bill because we believe it is important that the initial obligations on online copyright infringement should take effect as soon as possible. However, there is no doubt that this is a challenging timescale for the development, consultation on and approval of a code. It is all the more challenging because a code under new Sections 124C or 124D would require notification to the European Commission under the technical standards directive. This will require at the least that the code be notified in a near final form to the European Commission three months before it can be formally approved or made by order by Ofcom. However, since we published the Bill, it has been brought to our attention that the standstill period under the technical standards directive could, under certain circumstances, be as long as 12 months. While we do not expect this to be the case, and clearly we hope that it will not, it is not something over which either Ofcom or the UK Government have any control. Failure to comply properly with the technical standards directive in the making of the code would mean that the code itself, and therefore the related obligations in this Bill, could not be enforced. That is not a risk that it would be sensible to run.

I have no desire to relax the pressure on both industry and Ofcom to get a code in place and action under the code as soon as possible. I am therefore not proposing a simple extension to the deadline, but instead a power for the Secretary of State to extend that deadline should it appear to him that it is not practicable for Ofcom to make a code that takes effect within the existing deadline. I believe that this treads a path between taking account of the constraints of the technical standards directive while continuing to make it clear that we want to see the quickest possible progress on getting an initial obligations code in place. I beg to move.

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Lord Clement-Jones (Liberal Democrat)

My Lords, I must admit that I am sceptical about the Minister's case for this amendment. He said that it was necessary, but this has been framed in a very broad way indeed. Having taken part in the Second Reading of the new Video Recording Bill today, we all have a healthy regard for the powers of the European Commission in respect of technical measures and so on, and of course this will qualify under them. But that is not how the amendment has been framed. Some believe that we are being marched up to the top of the hill-whether the noble Lord, Lord Mandelson, is the Grand Old Duke of York, I do not know-and it looks like we are being marched down again. We feel that there is some impetus and real steam behind the timetable, but in a sense that particular balloon is now being deflated. I think that the Minister really has to do better than that in framing this amendment.

It looks like we will be working at the speed of the slowest in the convoy. This is an invitation, quite frankly, to all the recalcitrant stakeholders, whoever they may be, to go more slowly, knowing that if it looks as though they are not going to hit the deadline the Secretary of State has the power to delay matters. The Minister will be aware that there is great unhappiness, particularly among the copyright community, BPI and others, about the implications of this extension. Everyone would be a lot happier if this was a specific exception and it was clear that there was going to be a problem with the European Commission. However, there is no reason to frame this amendment in such wide terms.

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, I support the remarks of the noble Lord, Lord Clement-Jones. The government amendment is interesting. I sympathise with the Government's explanation. Many of the provisions in the Bill are the result of drafting a document in a rush to meet a timetable, as I commented when speaking to the previous amendment. It is clear to all of us how much better the Bill could have been if time had been made so that a little more thought could have been applied in the first place.

These provisions have been discussed for a long time and, once the Bill is made law, the uncertainties that we have debated over the past few days will be hanging over the industry's head until the code is agreed. Now we have all the further uncertainties added by European law. This cannot be right when trying to introduce legislation on a difficult and fast-moving industry. We understand the need for codes but to leave the industry not knowing where it stands and what it can or cannot do, cannot be right. How long a delay would the Minister consider acceptable? Is the eight months he mentioned satisfactory? I am not clear how long a period the Government are thinking of. What steps will they take if Ofcom is unable to resolve any insurmountable difficulties or disagreements?

We may also have to add another 12 months of potential European legislation on top. I agree that, in practical terms, it is unlikely to be 12 months but, nevertheless, if you are planning a business and how to run it, it is difficult to know what to do when you are faced with that kind of uncertainty for that length of time.

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Lord Faulkner of Worcester (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I understand completely the points that both noble Lords are making. This is not, in any sense, an attempt to say to the industry, the stakeholders and Ofcom that the pressure is off; it is not that kind of assertion. We are simply saying that it is possible that the technical services directive could lead to a delay and, if that were to happen, it would not be possible for the code to be ratified. There is no proposal on the table in respect of a delay from the Council of Ministers but we cannot rule out absolutely the possibility that such a proposal could be made within eight months of the Bill becoming an Act. We are committed to the code coming in on the original timetable; it is simply the fact that the longer timescale may be required by European factors that cause us to propose the amendment. I hope the Committee will agree to it.

Amendment 98 agreed.

Amendment 99

Moved by Lord Howard of Rising

99: Clause 7, page 9, leave out lines 17 to 34

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, Amendments 99 and 117 are probing amendments to explore the new body and its responsibilities. The material that we have recently been given appears to confirm that the new body is still unconfirmed-if my English is not too upside down. It is possible that all functions will remain within Ofcom. Can the Minister confirm that this will be the case?

What advantages does the Minister see the new body having over leaving all functions in-house? If Ofcom decides to outsource its responsibilities, will it fund the body itself or will it apply to the Government for new funds to pay for it? What circumstances could lead to more than one new body being needed? This Government have a record of creating quangos and a seemingly unabated appetite for more. It would therefore be nice to know more about it.

If a body is created, is it to have solely an administrative function? Clause 8 suggests that its role could be much larger and involve a quasi-judicial role in resolving copyright disputes. If this is the case, what interaction will the body have with the tribunal system that will be established under later clauses? I hope the Minister will take this opportunity to give us a great deal more detail about this new body, which may or may not come to life. I beg to move.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, the effect of Amendment 99, tabled by the noble Lords, Lord Howard of Rising and Lord De Mauley, would be to remove subsection (4) in Clause 7, which allows certain things in relation to the administration and enforcement of the code. I do not think that this would be helpful.

While I accept that noble Lords are keen to avoid the setting up of new bodies-as are we all; we certainly do not want to create any more quangos, despite such a harsh accusation about our predilection in this matter-and are equally keen to avoid Ofcom having new powers, the fact remains that someone must be responsible for administering and enforcing the code.

The options listed in subsection (4) allow for that to be done in-house by Ofcom, or by some other person or body. That seems pretty much to cover the possible options without in any way prejudging the outcome. Removing these options-and they are options, not requirements-would not help the delivery of effective regulation of the obligations. It may be more cost-effective to have a separate body do it. We are not making up our minds at this stage and we certainly do not want another quango created. With those reassurances, I invite the noble Lords to withdraw their amendment.

I turn to Amendment 117. New subsection (4)(a) in Clause 8 requires the initial obligations code to ensure that Ofcom or another person has the functions of administering and enforcing the code, including resolving "copyright infringement disputes". The proposed amendment would remove the last role, leaving the code with no dispute resolution mechanism.

It might be helpful if I set out what we envisage this dispute resolution role comprising. First, there may be some confusion over the terminology. The term that we have used here is "copyright infringement dispute", but it is further defined in new subsection (6) in Clause 8 to mean a dispute,

"between one or more copyright owners, internet service providers or subscribers [that] relates to an act or omission in relation to an initial obligation or the initial obligations code".

We are not trying here to introduce some new form of copyright adjudicator. The dispute resolution role would be applied only in relation to disputes about compliance with the initial obligation and the initial obligations code, with no wider remit.

Secondly, this is separate from the appeals process. The dispute resolution might apply if, for instance, an internet service provider were to feel that a copyright owner were not complying with their responsibilities under the code in relation to notification of the copyright infringement report volumes or the payment of the copyright infringement report fees. These are issues that would not be susceptible to being handled through the appeals process, but which require a process for resolution. The role is therefore an essential one and it is right that the code should be required to provide for it. In the light of the explanation, I invite the noble Lord to withdraw the amendment.

8:45 pm
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Baroness Buscombe (Conservative)

From listening to the Minister respond to my noble friend's concerns about the possibility of this body in Clause 7, it sounds as if he had almost lost the will to live. He does not want Ofcom to have more powers, and he does not want to set up a quango-so what is the point of new subsection (4) in Clause 7? Why do we need to establish another body or body corporate? We know that it is highly unlikely to be more cost-effective to set up another body. Is the Minister saying that he would prefer that Ofcom were to undertake these responsibilities? Who will it be left to to decide that there should be another body corporate? The whole thing seems to have been introduced into the Bill without much aforethought-hence the Minister's notes sound less than convincing. Given that the Government have concerns about having more quangos and want to be an effective Government and so on, why are we now talking about other bodies that may come into fruition? It is all so fluffy and ill thought-through, if I may say so.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, the noble Baroness is being harsh. No, I have not lost the will to live. Fancy being deprived of the sheer pleasure of listening to the noble Baroness enunciating my poor performance in these areas, or the ineffectiveness of the superb briefing notes supplied by my superb Bill team. But to treat the matter seriously, let us not elevate this more than it should be. We are introducing some flexibility, which may be more appropriate as we are trying to determine the best solution. If it proves to be that the most effective solution is for Ofcom to do it, we will not oppose that in any way. I am pleased to see that a member of the Opposition, whose stance is normally to be highly critical of Ofcom and accuse it of having far too many powers, should insist that it retains this particular one. We believe that this is a flexibility that is reasonable in the circumstances. If Ofcom proves to be the right body to do it, we would not oppose that-it is merely about flexibility.

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Baroness Buscombe (Conservative)

I am grateful to the Minister for allowing me to intervene again briefly. What is being proposed here is extraordinarily wide-ranging; it is almost terrifying in its proportion. New subsection (4) establishes,

"one or more bodies corporate with the capacity to make their own rules and establish their own procedures ... determine the jurisdiction of a body established by the code or, for the purposes of the code, of any other person".

I have never before heard such a wide-ranging power being proposed in a Bill. I say that as a lawyer-and perhaps that means that I will be overcautious, but this is truly extraordinary. Perhaps this could be thought through with some care, in discussion with other Front Benches, between now and Report. The possibility is really quite disproportionate to the powers that we hope will be granted to such bodies corporate.

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Lord Clement-Jones (Liberal Democrat)

My Lords, to add to the Minister's will to live, I wondered whether this issue had some relation to that mythical beast, the Digital Rights Agency, which we saw heralded but that never actually appeared. I do not know if this is at all relevant to that. We on these Benches thought it was an unnecessary body, but maybe it is one of the unnecessary bodies that is being envisaged in this part of the Bill.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

While I am on this collective life-support machine, we will take this one away to ensure that we reassure the noble Baroness that that is not the aim or intention of this clause. With that assurance, I hope that the noble Lord feels able to withdraw his amendment.

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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, I am grateful to my noble friend Lady Buscombe for her relevant and pertinent remarks, although I am now rather worried about the Minister's health. He seems to be looking all right; I just hope he will make it through the rest of this evening-perhaps even for the rest of the debate. It looks as if we have a long hard road ahead in this Committee, and I would hate to think that he would not make it.

I am glad to hear the reluctance from the Benches opposite to create new bodies and quangos. I am sorry that the Minister thought my remark unfair, but he must admit that quite a few have been created in the past few years.

I do not see how removing the option to have various other bodies would be more effective. Surely the most effective method of doing something is to use the body-in this case, Ofcom-that already has the expertise to carry out the job and already has an overhead, offices and everything that is required to do this, rather than to set up any new body, or bodies, as my noble friend Lady Buscombe pointed out.

The explanation that the Minister gave has not really answered this point. He commented that the remit would be limited, but frankly that is even less reason to set up a new body. I do not know if he would care to comment on that before I withdraw the amendment.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, I gave an assurance that we would take this away to see whether we are creating anything that is unnecessary. We believe that we are not, but we will look at the point that the noble Baroness, Lady Buscombe, made about extensive and unnecessary powers. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

I thank the Minister for his remarks and for his agreement to go and have another look. I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

Amendment 100 not moved.

Clause 7, as amended, agreed.

Clause 8 : Contents of initial obligations code

Amendment 101

Moved by Lord Howard of Rising

101: Clause 8, page 10, line 14, at end insert "to 1 year or less"

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, Amendment 101 is a probing amendment. It is to discuss the value of establishing a time limit on how long information about subscribers may be kept. I have suggested that there is no reason to hold such information for one year. According to some, this is far too short, given the length of time a civil case takes to move to a resolution. I am more than willing to hear what sort of time would be more appropriate. As the Minister is aware, there are statutory requirements for corporate bodies to retain documentation, and I do not know whether or not keeping this sort of information would come under that. The Government have already indicated that the initial obligations code should include details of this type. What sort of time period is the Minister thinking of? I cannot see any reason why this sort of detail should not be placed in the Bill. I beg to move.

Photo of Lord Young of Norwood Green

Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, the effect of the amendment tabled by the noble Lords, Lord Howard of Rising and Lord De Mauley, would be to expand the existing subsection (1)(d) in Clause 8 so that, rather than it being a general requirement for the code to limit the time for which internet service providers keep information, this would be capped by a maximum timescale of one year or less. It is important to remember the nature of the code. The idea and expectation is that this should be drafted by industry, taking into account the concerns and interests of consumers. I stress that; sometimes we lose sight of that important safeguard. This is the real involvement of stakeholders. As such, we would expect it to be a pragmatic document, with fairness as well as effectiveness at its core. It is right that there should be a considerable degree of flexibility in what it says and how it works.

Against that, I understand the thinking behind the amendment and the sensitivity over personal information being held for longer than absolutely necessary. It is, in practice, difficult to think of circumstances in which it would be necessary to keep such information for longer than a year. Indeed, there might be something to be said for a shorter period. I am also aware of concerns raised by the consumer magazine Which? about legal action taken on behalf of some copyright owners which could be left hanging for years. It is a fine balance between giving certainty on the period for which information can be kept and allowing those drafting the code sufficient flexibility. Noble Lords will see that this is an issue that the outline of the initial obligations code clearly recognises as one that the code will need to address.

On balance, it is reasonable to leave this as a matter on which we can trust the code to agree a pragmatic solution. Taking into account that, as I said, the stakeholders-both industry and consumer representatives-will be involved in the formation of the code, I hope that, with that assurance, the noble Lord will feel capable of withdrawing the amendment.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

I thank the Minister for his comments. I do not know what he will think if industry drafts something which is unsatisfactory. It is not always clear that those involved in commerce-this is, after all, a form of commerce-are very good at considering their customers. That is not really their job; it is for the Government to set the parameters within which industry must work. In this case, it would be feasible for the Government to look at some form of time constraint, even if it is not the year that I have suggested. I hope the Minister will look at this before we come to it again. In the mean time, I beg leave to withdraw the amendment.

Amendment 101 withdrawn.

Amendment 102 had been withdrawn from the Marshalled List.

Amendment 103 not moved.

Amendment 104

Moved by Lord Lucas

104: Clause 8, page 10, line 17, at end insert-

"( ) that it makes proper provision for rights of appeal by subscribers concerning notifications (see subsection (1A));"

9:00 pm
Photo of Lord Lucas

Lord Lucas (Conservative)

My Lords, I shall speak also to Amendment 109. With rights of appeal, we come to a very important part of the Bill. It seems absolutely clear that where an ordinary person gets caught up in the provisions of the Bill, they will be confused and uncertain. In many cases they will feel that what they have done is not wrong; that they are being chased unnecessarily; that they do not have the information that they require to state their case properly; and that they are faced with a series of technical allegations that they may find difficult to relate to what they have done.

Therefore, we need to be clear, ideally in the Bill, about the rights which somebody who faces accusation under this Bill has by way of clearing their name. Certainly, I would very much like to understand what the Government's proposals are for the timescales involved in this. When we were talking about earlier amendments, we came to the conclusion that this was the only thing on which we could pin the system down and that the question of the number of accusations which had been made was going to be pretty variable and really depended on whether this was a particular person on whom the copyright owners had chosen to light. So the comfort that a citizen has that they will be dealt with properly very much depends on the timescales. When they receive a notification, how long have they got to appeal? How long will the appeal process take? Are we looking at a double-decker appeal; that is, after the first notice and appealing it, is there then, as the noble Lord hinted earlier, a second, tougher letter and an appeal on that before we get to the point when a person's details are actually given to the copyright owners? What exact timescale and process are the Government proposing for this?

Will an appeal process be free to the subscriber, or will he have to pay to go through this process? In other words, will it be a friendly, supportive process where he will feel that he does not need to have legal advice? Will there be limitations on the grounds of appeal? That is a feature of the traffic tribunal, for instance, where there are five stated grounds of appeal. That means that in many cases the tribunal has no ability to exercise common sense, as one of our colleagues on the Liberal Democrat Benches found out a year or so ago. Will there be a definite defence for those subscribers who have done all that they reasonably ought to do-to my mind, "reasonably" for an ordinary individual means something like an hour's work, but what does it mean to the Government-or that they reasonably should do to make sure that they were in a position to prevent the offence complained of; in other words, that their defences had been overwhelmed and they should not be blamed for it? The reasonableness of what we are letting potentially hundreds of thousands of our citizens in for depends on the process of appeal. We have discussed how the accusation and the letters are going to work, and I think that I have a reasonable grasp of that, but I do not have a grasp at all of the quality of the appeal process. I should be very grateful for the Minister's help with that. I beg to move.

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Lord Clement-Jones (Liberal Democrat)

My Lords, I speak to Amendment 106. It is worth celebrating that, unlike the English cricket team, we have scored rather more runs tonight than we originally anticipated. We may make rather better progress in the next hour or so than we have of late.

Unlike the measure proposed by the noble Lord, Lord Lucas, this amendment does not so much deal with the substance of the appeal process but the information and advice surrounding it. The intention of Amendment 106 is to ensure that subscribers are able to get information and advice about copyright law and online infringement as well as about the provisions of the Act. It is of paramount importance that whatever changes are brought about by this Bill, they should be implemented only in an environment of extensive public education and information about online copyright. That is a pledge that the Government have given and is something on which I think noble Lords on all Benches agree.

It is clear that many consumers are unaware of the implications of copyright law and may also be unaware of the impact of the Bill. The amendment seeks therefore to ensure that the notification scheme includes provision for consumers to get independent information and advice. We envisage this being delivered by methods such as information on the internet, e-mail, leaflets and perhaps a telephone advice line. There are all sorts of ways in which this education and information can be imparted. That is an essential part of the Bill. We all agree that it is not purely about enforcement but a lot is about culture change. That is what the amendment seeks to do.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, I thank my noble friend Lord Lucas for his amendments, not only for raising the point about information and getting that into the right hands, as the noble Lord, Lord Clement-Jones, mentioned, but for raising the question of the sort of appeals system that would be established under the provisions.

There is so little information available about the sort of process that is envisaged that it is hard to know where to start. I agree, of course, with my noble friend. The appeal should cover the whole scope of the initial obligations code. Much as a notification letter might be considered only as a warning, it is nevertheless the first of three steps towards further action that would potentially end up in court. A subscriber should not be taken down that path if there is no good reason for that to happen.

There can be no justification for any cost falling on a subscriber if he has a successful appeal. If someone has done nothing wrong, yet still receives a notification letter, it is not his fault; it is the fault of the rights holder or the internet service providers, which have failed to correctly identify the infringement. I very much hope that the code will be sufficient to stop such errors occurring, but provision should certainly be made just in case. Mistakes arise-they happen-and it would be quite wrong for legislation such as we are debating this evening not to provide for a remedy in the event of innocent people being accused of misdoings.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, I will start with Amendments 104 and 109. The purpose of the amendments is to add a further criterion to the list for the initial obligations code to ensure that proper provision is made for rights of appeal by subscribers concerning notifications and to set out in more detail what that should be.

I agree with the noble Lord that protecting the legitimate interests of consumers and providing a clear route of appeal for subscribers who feel that they have been wrongly identified is important and must form an integral part of the system. However, I suggest that this is already properly provided for in the existing text and that therefore the amendment is not needed. Requirement for a person to have responsibility for subscriber appeals is clearly set out in the same clause, at proposed new subsection (4)(c), and is not in need of any further explanation in the Bill. The requirement will have to be reflected in the code, which will include ensuring that subscribers are aware of their rights as well as their responsibilities at every stage of the process.

The point was made by the noble Lord, Lord Howard, when he said that the first letter should still have the right of appeal. I absolutely agree with that, because it could be a totally fallacious allegation or there could have been an error and it is appropriate that the subscriber should have the opportunity of correcting that. I shall come on to the question of cost later.

It is also essential that we do not attempt to micromanage everything in this process and that we give clear general direction and leave the interested parties under the aegis of Ofcom to work out the details. When we talked about consultation on the construction of the code, the noble Lord, Lord Howard, expressed concern about industry not getting involved. I gave him an assurance that it was "stakeholders", not "stakeholder", and that there would be consumer representation as well. I hope that, under the aegis of Ofcom, we will get the balance right in the code.

The way in which Amendment 109 specifies how the appeal process would work sets too many precise requirements and leaves too little room for legitimate manoeuvre. I will give an example. It may be appropriate for a small fee to be payable, refundable if the appeal succeeds. As the noble Lord, Lord Howard, pointed out, you should not be punished for lodging a successful appeal. This would deter mischievous appeals intended simply to delay the process. I am not saying that this is the way in which an appeal system should operate; I just give one example of something that might be considered, which is the payment of a small fee that would not be a deterrent and would be refunded if the individual were successful in the appeal. That would conform with natural justice. I make the plea that we should allow room for the details to be sorted out by the people concerned, including Ofcom, who have a duty to look at consumers' interests.

I will move on to Amendment 106, which was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. Providing information on reducing online infringement of copyright, and on how the Bill is intended to work, would not be of great value to subscribers. Therefore, that is not worth adding. However, the point that the noble Lord made about information, advice and guidance being available to people is a very good one. I will take it away and come back to him on what we are doing. If we are talking seriously about changing behaviours, which is our first approach, that should be part of the educative process. The Bill already provides that the notifications sent will include information about copyright and its purposes and advice about how to obtain lawful access to copyright works. It is difficult to see what more might be needed. As long as the subscriber has the proper information to know where they stand and what they can do about it, there is little virtue in cluttering things up with a description of the whole process.

I return once again to the concern expressed by the noble Lord, Lord Lucas, about appeal timing. Details of appeal timing are in the code. Areas of appeal are dealt with in subsection (6). We expect that a subscriber could appeal at any point in the process. In practice, they might be more likely to appeal if they were put on the copyright infringement list, but they might, as the noble Lord, Lord Howard, pointed out, appeal when they received the first letter if they felt that they had been incorrectly identified. I understand that point.

The question was raised about whether taking all the appropriate measures that we have advised is a reasonable defence. In our view, it would be a reasonable defence. If the letter tells you, either as an individual or as a communal subscriber, the ways in which you can prevent these infringements from taking place and you undertake all those measures, yet an ingenious hacker finds another way of circumventing them, that is an indication of somebody having taken all reasonable measures and it would be a right and proper defence. In the light of the explanations that I have given, I hope that noble Lords will not press their amendments.

9:15 pm
Photo of Lord Lucas

Lord Lucas (Conservative)

My Lords, I will not harry the Minister at this time of night if he is willing to write to me later, but I really want to know what we are in for when it comes to timescales. The notice arrives at the ISP. The criteria for sending a letter are triggered. What are the timescales from then on? How long does the subscriber have to appeal, if they are going to appeal? How long before a second infringement counts as a second infringement, rather than just a continuation of the first? If the subscriber appeals, how long will that process be likely to last? While the subscriber is appealing, are they exempt from the triggering of a second letter, or will that process run concurrently? I understood from what the noble Lord said that there would be a gentle first letter and a heavier second letter and that, if there was a third infringement, the subscriber would be chucked to the wolves. Is that the correct interpretation?

The timescale-the time given for education, the process by which education takes place and how appeals fit into all this-is the one thing in this Bill that we can batten on to in making sure that what we are doing is reasonable, so far as the citizen is concerned. We are starting out with 7 million citizens, or thereabouts, who are not following the law that we would wish them to follow. I do not believe that either party wants a substantial number of those people to end up in the civil justice system as it is experienced at present by people who fall foul of the BPI. Some of those people, who have done nothing more than make stuff available for upload, are three years into the civil justice system without knowing what their fate will be. That is not fun for a young person. It is happening on a small scale, but it gives you an idea of the BPI's policy on these things. It does not let go. It pursues hard.

One can expect this policy to be followed as regards people who will get caught up in the process as a result of the Bill. If that becomes a substantial number of people, first, the civil justice system will not appreciate it, but, secondly, there will be stories in the newspapers and on "Your and Yours" every other week about people caught doing something that people regard as possibly on the fringes of legality but entirely ordinary.

We have a big education programme ahead of us. We want to succeed in that. The timescale that this process works on-the time that we give ourselves to educate people and the processes that they go through to gather awareness before we pitch them into the civil justice system-is immensely important. I know that this is not the final version, but I should very much like to hear the Government's thinking on it.

Photo of Lord Young of Norwood Green

Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

As I am sure the noble Lord knows, we are not proposing to pitch anyone into the civil justice system-far from it. As he himself identified, there would be a cautionary first letter, a second letter and then possibly technical measures, which still would not pitch people into the civil justice system. I want to reassure the noble Lord and be helpful. We shall see whether we can put some more flesh on the bones of this issue. A lot of it is appropriate to the code, in whose compilation stakeholders will be involved, as I indicated. However, we shall see whether we can put more flesh on this procedure. I understand the desire to understand the process. If we can help, we will endeavour to do that, because it will be beneficial to the Committee and to the House as a whole.

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Lord Lucas (Conservative)

My Lords, I am grateful and I beg leave to withdraw the amendment.

Amendment 104 withdrawn.

Amendment 105 not moved.

Amendment 105A

Moved by Lord Clement-Jones

105A: Clause 8, page 10, line 24, at end insert-

"( ) that any criteria must be fully consistent with Ofcom's duties in sections 3 and 4 of the Communications Act 2003;"

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Lord Clement-Jones (Liberal Democrat)

My Lords, I am afraid that we are back into relatively technical territory here. The purpose of this amendment is to clarify the relationship between Ofcom's established duties under the Communications Act and the proposed new functions.

Ofcom's current powers and functions under the Communications Act flow from the general duties set out in Sections 3 and 4 of that Act. The proposals in the Bill do not indicate under what duty or duties in the current Communications Act Ofcom would carry out the functions proposed under the Bill. The proposals are a fundamental departure from Ofcom's current role in relation to the regulation of communications matters and the furthering of the interests of citizens and consumers in relation to such matters. The proposal is for them to be treated as part of the regulation of premium rate services when there is no basis for doing so. It is therefore necessary to clarify how Ofcom's new role is justified, how that role will sit with Ofcom's current role and pre-existing duties, and to frame underpinning legislation on a proper basis. In particular, clarity is needed on what the provisions of the code are intended to achieve and how objective justification, discrimination and proportionality of the provisions of a code are to be determined. I beg to move.

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Lord Davies of Oldham (Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

My Lords, I am concerned that the noble Lord still has anxieties about what he referred to as technical aspects of the Bill. I do not think that the amendment is needed. Ofcom is being given the role of regulator for these provisions and, as such, it will have either approved the code or written it, or perhaps, as is more likely, it will be a combination of the two, where it will utilise what industry can agree on and fill in the gaps where agreement does not exist.

One of the main reasons why Ofcom was such an obvious candidate for the role of regulator was its remit under the Communications Act 2003. The key passages of that Act are right at the beginning of the part dealing with general duties. I know that the noble Lord is very familiar with the Communications Act, so I hope that he will accept these comments in the spirit in which they are intended and for the record.

Section 3(1) of the Act reads:

"It shall be the principal duty of OFCOM, in carrying out their functions ... to further the interests of citizens in relation to communications matters; and ... to further the interests of consumers in relevant markets, where appropriate by promoting competition".

Just as pertinent is subsection (3):

"In performing their duties under subsection (1), OFCOM must have regard, in all cases, to ... the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and ... any other principles appearing to OFCOM to represent the best regulatory practice".

It was this obligation to look to the interests of citizens and consumers and the commitment to best regulatory practice that made Ofcom the obvious choice, quite apart from its expertise in this area. I hope we can all agree that this is the right decision and that there is no need to spell it out again in the Bill.

Ofcom is the regulator and, as part of its constitution, it must operate in accordance with its duties as set down in the 2003 Act. There is no point in amending this Bill to say so because it is already stated in the Communications Act. As it will be responsible for approving or making the code, it will perforce have to do so in the light of its duties, as I have identified. I hope that the noble Lord will appreciate that his anxieties are not well founded because Ofcom, in delivering the code, is bound to work within the framework of the very principles that he is putting forward. Therefore, I hope that he will withdraw the amendment.

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Lord Clement-Jones (Liberal Democrat)

My Lords, I thank the Minister for his reply, which I thought was splendidly circular in nature: it said that Ofcom is the regulator and therefore it will be regulated. On examining the language of Section 3, I agree with some of those who briefed me that it is somewhat straining to cover the duties of Ofcom under this Bill. I will certainly take away what the Minister said and look at the Communications Act again. It is not clear that the Bill and duties of Ofcom under it are entirely covered by the overarching duties of Ofcom under Section 3. I hear what the Minister says about duties to the consumer and so on, and accept the second limb, but the first limb is a lot more tenuous. I will be reading the Minister's remarks with close attention in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment 105A withdrawn.

Amendments 106 to 111A not moved.

Amendment 112

Moved by Lord Clement-Jones

112: Clause 8, page 10, line 35, at end insert "which shall be no more than three months"

Photo of Lord Clement-Jones

Lord Clement-Jones (Liberal Democrat)

We want to ensure that the Bill sets out the time limit for making a copyright infringement report, and we suggest three months. There is some sort of Sword of Damocles hanging over a subscriber, and it is important that there should be a time limit within which a copyright owner is required to act. We seek reassurance as part of the purposes behind the amendment that a subscriber will receive a copyright infringement notice-a CIR-in a timely fashion. We suggest setting that at three months. We are concerned that subscribers may not otherwise receive a CIR until many months after the alleged infringement, by which time it may be much more difficult for them to challenge it. That would be unfair and a denial of natural justice. I beg to move.

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Lord de Mauley (- Shadow Minister (Also Shadow Minister for Universities and Skills), Shadow Minister, - Shadow Minister (Also Shadow Minister for Children, Schools and Families), Shadow Minister; Conservative)

The noble Lord raises an interesting question on how far into the future a subscriber should be held to account for past infringements. I agree with him that there are many benefits in keeping the period from detection to notification as short as possible. It is fairly clear that if a subscriber has not received a notification letter for his first detected infringement, he will not take steps to stop future infringement or prevent others from infringing on his account. How could he? It is surely axiomatic that there is a high risk that he will continue to have infringement reports laid against his account and might become liable for a second or third letter, or future action before he even receives the first letter. Indeed, he may very well never receive it.

That is both unfair and ineffective, and the code should seek to prevent such a situation developing. I would go further than the noble Lord, Lord Clement-Jones, and suggest that not only is the time between detection and the infringement report important, so is the time between detection and any consequent notification letter. A letter is likely to have far more impact on a subscriber if it relates to a recent infringement, and the impression that one can breach copyright with immunity is likely to be dispelled that much more quickly. It is also true that if a letter is received long after the event it will surely be interpreted as an indication that the sender is not serious.

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Lord Mackay of Clashfern (Conservative)

It seems to me to be fair that if an infringement report is to have consequences, it should be issued within a reasonable time. I do not know the circumstances that would suggest three months exactly, but looking at the matter generally, three months seems a reasonable period. It is also important to take into account the circumstances in which the infringement happened. I imagine that circumstances in this area change and may change quickly. It may be very difficult for a subscriber to bring back to his mind exactly what were the circumstances if he is caused to wait a long time before an effective infringement report is sent to him.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, this is another case where we need to balance a proper concern with the position of a subscriber with the need to keep flexibility where there is not good cause to stipulate otherwise. On the face of it, this is a reasonable limit to set on the time period between an alleged infringement taking place and the receipt of a notification by the internet service provider. As I listened to the noble Lord, Lord Clement Jones, I could not help reflecting that justice delayed is justice denied.

It would certainly not be desirable for copyright infringement reports to refer to events a long time in the past, when it might be significantly more difficult for subscribers to recall the circumstances-as the noble and learned Lord, Lord Mackay, said-and, if appropriate, form a defence. However, we should not accept the amendment, and I will explain why, although I absolutely concur with the principle. We need to be aware of the law of unintended consequences. Almost inevitably, if we set three months in the Bill, that will be adopted as the default period, rather than the limit that it is intended to be.

We are right to leave that open in the expectation that the period between alleged infringement and the report being sent to the internet service provider should be a matter of days, rather than months. There might be exceptional circumstances-please do not overreact, I say that there might; it would have to be demonstrated-where it is justified that the time between an incident and the report is greater than three months, but, boy, that would have to be justified and demonstrated in the face of any appeal by a subscriber. We certainly take the view that notifications should not be delayed, but we do not want a default position of three months to be established, because that could be counterproductive.

On balance, the better path is to trust the code-I do not want to go over again how the code is to be formulated, because we are familiar with that now-to deliver a fair and pragmatic approach to the time limit requirement. We take into account the point made by the noble Lord, Lord De Mauley, that if we leave it too long, the system comes into disrepute, and the other point made about natural justice. Let us trust to the code to deliver a fair and pragmatic approach to the time limit requirement. Accordingly, in the light of the assurances and explanation that I have given, I hope that the noble Lord will feel able to withdraw the amendment.

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Lord Mackay of Clashfern (Conservative)

Perhaps it is worth the Minister's while considering whether, if it is generally speaking possible to do it in days, we should have a short period as the primary period, with the possibility of extension up to, let us say, three months. I understand that if we say that it is three months, everyone will say, "We do not need to do anything about it for three months". That is a natural human reaction. On the other hand, if we say, "You have to issue the report in 10 days", or something like that, and in exceptional circumstances that could be extended, but in no case for longer than three months, that would seem to me to embrace the spirit of what the Minister said in his reply.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

We will take that point into account-it is a sensible suggestion-but I return to my previous point. We believe that this is a matter for the code. The point made by the noble and learned Lord, Lord Mackay, is probably a sensible one to be embraced in the code. I am not sure that we should state three months, but that solution injects the right sense of urgency and makes the point that an inordinate delay would not be tolerated.

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Lord Clement-Jones (Liberal Democrat)

My Lords, it is always good to have a former Lord Chancellor enter the lists on your behalf. I thank the noble and learned Lord, Lord Mackay, because I thought that he phrased it exactly right. I know that if he suggests something, it is robust in technical legal terms. I am sure that that is the case. I also thank the noble Lord, Lord De Mauley, for the scenarios that he rightly raised in respect of possible delay not only to the initial notification but to subsequent notifications.

The Minister initially appeared sympathetic and raised our hopes, only to dash them halfway through his speech, which was very sad. He has again demonstrated that he is a glass-half-full person. He is optimistic about the way the code will operate, but he is probably surrounded by rather more pessimism than he would like. "Trust the code" was his watchword, but the fact is that if the code is going to be created by different stakeholders, it will be like having a bunch of ferrets in a sack. Most of us, the glass-half-empty gang, if you like, believe that Ofcom will have to impose a code upon stakeholders, rather than that the stakeholders will voluntarily come to the table. I think this is one of the areas that we might well want to come back to on Report, as it is very important consumer protection. We need to have some certainty about the limit beyond which consumers should not be concerned about the possibility of copyright holders coming back to them.

I understand what the Minister had to say about three months being treated as the norm, but the noble and learned Lord, Lord Mackay, dealt with that very effectively, and I hope he comes in on my future amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment 112 withdrawn.

Amendment 113

Moved by Lord Clement-Jones

113: Clause 8, page 10, line 35, at end insert-

"( ) a requirement that reports are to be considered as sensitive personal data within the meaning of section 2 of the Data Protection Act 1998; and

( ) a requirement that reports are not exempt from disclosure under section 7 of the Data Protection Act 1998"

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Lord Clement-Jones (Liberal Democrat)

I suspect that the Committee will find my stream of amendments somewhat wearisome, but this is the final one in this run. The batting average is pretty low at the moment, so I will try to improve on it in terms of the ministerial responses rather than the speed at which the amendments are going forward.

The effect of this amendment is to provide minimum data protection requirements in respect of the code governing copyright infringement reports. Under Section 2(g) of the Data Protection Act 1998, any accusation that a person has committed an offence is sensitive personal data. This amendment makes it clear that those provisions apply. In that respect, it is a probing amendment. I beg to move.

Photo of Lord Howard of Rising

Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

I think the noble Lord, Lord Clement-Jones, underestimates himself. His amendments are always worth consideration even if, on occasion, we must agree to differ. He has managed to bring in some very distinguished support for his amendments this evening. I hope the Minister will be able to reassure the Committee that almost every record held against a subscriber in these provisions will fall under the Data Protection Act. The possibility of an internet service provider or a rights holder passing to an unrelated third party information about what infringements it has detected could lead to worrying breaches of privacy. One example is that without the protection of the Data Protection Act, blacklisting would be made much more possible. Internet service providers might decide that a subscriber should not be able to take out a new subscription on account of his past behaviour, without really knowing whether the accusation was justified.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

I thank the noble Lord, Lord Clement-Jones. He has brought a new dimension to streaming that I had not anticipated.

The amendment would treat a copyright infringement report as sensitive personal data under the Data Protection Act 1998, and would require ISPs to be obliged to disclose a copyright infringement report on a subscriber on application by the subscriber.

On the first part of the proposal, the data that are currently defined as sensitive personal data under the Data Protection Act cover issues such as race, political or religious views, mental and physical health matters, sex and criminal offences, and criminal offence proceedings. It is difficult to see how a copyright infringement notice might fit into this category of data: some of the content might, but not the actual copyright infringement notice itself. A CIR provides evidence of an apparent infringement of copyright that for the most part is a civil matter.

It is difficult to see how the internet account of a particular subscriber could be any more of a sensitive, personal matter than, for example, a parking ticket for parking in a disabled bay a car that is registered to an individual. I assume that the intention behind the amendment is to constrain what can be done with a copyright infringement report once it has been matched to an individual subscriber. Existing data protection legislation provides sufficient protection. I stress that a copyright owner will be able to access the name and address of the subscriber only by asking a court to require the ISP to provide that information. Both ISPs and copyright owners will have to comply fully with any obligations and duties that apply under the Data Protection Act in respect of information that is part of or associated with a copyright infringement report.

On the second part of the amendment, the whole purpose of the CIR is to trigger a notification to the subscriber that is likely to contain all relevant information in the copyright infringement report: that is, evidence of the copyright infringement, including the material copied, the time and date on which it took place, and the IP address identified. In the case of someone who continues to infringe copyright, CIRs are likely to reach the ISP that do not result in an immediate notification to the subscriber. In all cases, however, a certain number of CIRs will trigger a further notification letter-we are now talking about thresholds, to which we said we would return-that will tell the subscriber how many CIRs on his account have been received and the apparent infringements to which they relate.

Under the Data Protection Act, a subscriber will be able to make a request to an ISP to see the personal data which it holds on that subscriber. This includes any CIRs on that person. There are certain circumstances under the Data Protection Act in which an exemption applies and the disclosure of personal data is not required. However, the exemptions are very limited and may not apply in the case of the CIR. I can see no good reason for treating the personal data in the CIR any differently from other types of personal data. The Data Protection Act is a complex regime, and it would be neither appropriate nor necessary to amend the regime in respect of these reports.

I have given a detailed explanation. I must say that I tend to err on the side of believing that the glass is half full, but I do not go to the Panglossian extreme of believing that all is for the best in this best-of-all-possible worlds, although I hope it is.

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Lord Clement-Jones (Liberal Democrat)

My Lords, I thank the Minister for that absolutely splendid response on the Data Protection Act. I do not propose to answer at this very moment, but I will have teams of data protection lawyers running through his response, which was absolutely fascinating. At this time of the evening, we need not pick over the Data Protection Act too closely. I confess that I am not sure whether he is correct, but we shall see. In the mean time, I beg leave to withdraw the amendment.

Amendment 113 withdrawn.

Amendments 114 to 115 not moved.

Amendment 116

Moved by Lord Razzall

116: Clause 8, page 10, line 45, at end insert "; and

( ) requirements on the time limit for notifying subscribers which must be no more than one month"

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Lord Razzall (Liberal Democrat)

My Lords, Amendment 116 relates to a very straightforward point. I hope that I do not require the help of the noble Lord, Lord Whitty, to persuade the Government to accept the amendment, because it is so obvious that we need to protect the subscribers.

This part of the Bill is about trying to get the right balance between the interests of those who believe that downloading on the internet should be their inalienable right and those who believe that those who take copyright material are stealing it. Finding the balance between those positions is what this section is about. This straightforward amendment proposes that there should be a time limit for a subscriber to be notified of a CIR. This amendment suggests one month. We believe that that should be in the Bill because we are concerned that subscribers may not otherwise receive a notification until many months after the alleged infringement, by which time it would be very difficult for them to challenge. I hope that at this late stage the Government will accept this amendment with ease. I beg to move.

9:45 pm
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Lord Howard of Rising (- Shadow Minister (Also Shadow Minister for Treasury and Culture, Media and Sport), Shadow Minister, Shadow Minister (Also Shadow Minister for the Cabinet Office and Treasury), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for the Cabinet Office and Culture, Media and Sport), Shadow Minister; Conservative)

My Lords, we on these Benches entirely agree with the noble Lord on the need to send the notification letter as soon as possible after the relevant infringement report has been made, which, as we have said, should be sent equally soon after the alleged infringement. I am uncertain about the specification of one month as a time limit, especially because of the possibility that a second or third notification will not be sent out until a certain level of continuing breaches has occurred, which may be some time after the first breach. However, an expected turnaround time would be very helpful. I am interested to hear what sort of timetable the Minister expects the internet service providers to follow.

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Lord Young of Norwood Green (Government Whip (technically a Lord in Waiting, HM Household), Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Labour)

My Lords, the amendment would set a clear time limit of a month for how long an internet service provider has from receiving a properly presented copyright infringement report from a copyright owner to when a notification is sent to the subscriber alleged to have been infringing online if the copyright infringement report is one of those for which the code requires a notification to be generated.

The glass is still half full, but I have a good deal of sympathy with the thought behind this amendment. This is an area where speed is important and it is not reasonable to expect people to remember the circumstances around what they were doing online weeks or months in the past. We explored that area in our debate on the previous amendment. However, this is not something which we need to specify in the Bill and it might prove to be counterproductive to do so. Once a period is specified in legislation, inevitably that would be the said period. It would become the default period despite the intention and the wording making it clear that it should represent the outer limit.

This is not a risk that we should take. I anticipate that the norm between the receipt of a copyright infringement report and a notification being sent, if appropriate, will be a matter of days. If the process is fully automated-it is our view that that will happen-we may be in the realm of minutes. I would much prefer to leave the details and the essential safety nets to the code, and not take the risk of inadvertently introducing a potential drag into the system. Obviously, I note the arguments that were made. We still believe that it is proper to the code, but we will look at whether there might be some helpful parameters. On the basis of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

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Lord Razzall (Liberal Democrat)

My Lords, I thank the Minister for that response. I suspect that this is the last amendment tonight and it is probably a good one to end on. It encapsulates the difference that has arisen on several amendments between the two Opposition parties and the Government in that where there are issues of the fundamental protection of individuals' rights, we are looking to have protections put in the Bill. I would not go so far as to say that the Minister's glass is always half full because occasionally it is half empty. Indeed, at times it is completely empty.

Noble Lords:

Oh!

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Lord Razzall (Liberal Democrat)

I shall withdraw that. There is a fundamental difference here, and when we get to the Report stage we will want to look at the individual amendments we have moved where we feel that issues of principle arose that the Government actually agree with, so there is no disagreement between us. The only issue is whether these should be left, as the noble Earl, Lord Erroll, described them, to the bureaucrats in Whitehall. He did not say Room 101 because he does not know his Orwell, but that is what he meant. We will go through the Bill and we might even talk to the Tory Opposition about whether we can agree with them what should be put in. It is interesting that there is no disagreement between any of us, only where these issues should be enshrined-whether in the code or in the Bill. In the mean time, I am happy to withdraw the amendment.

Amendment 116 withdrawn.

House resumed.