Liberty: disconnection is disproportionate and indiscriminate
Liberty are condemning the Digital Economy Bill’s file sharing measures on human rights grounds, saying it “runs wholly counter to a human rights compliant approach”. While, like ORG, they believe copyright should be respected, they point out that the measures proposed cannot be applied easily without innocent people being affected, and point out that disconnection is intrusive and disproportionate. They also think that powers as drafted could lead to the Secretary of State being able to restrict access to the web on a wide range of non-copyright grounds, leading to much wider freedom of speech concerns. Here are the key paragraphs. You can read their full briefing here (PDF 87kb).
13. In creating such an order-making power the Government is proposing that in dealing with suspected copyright infringement (or indeed as we outline below in dealing with any particular type of internet use) ordinary criminal or civil procedures will be bypassed replaced instead with an administrative process laden with executive involvement and devoid in the first instance of due process safeguards. This proposal continues two disturbing trends enthusiastically adopted by this Government over recent years. The first is the attempt to sidestep traditional criminal or civil law standards and procedures in favour of administrative systems controlled by the executive which undermine rights and erode procedural fairness. At its very worst this corrosive model has allowed for indefinite house arrest for those suspected of involvement in terrorism under the control order regime. The second trend is the penchant for leaving that which should properly be dealt with on the face of primary legislation to secondary legislation in the form of regulations or Orders which do not attract sufficient levels of parliamentary scrutiny.
14. The sanction proposed under model 2 is severe. The explanatory notes state that orders by the Secretary of State under clause 11 “would require ISPs to take measures to limit internet access to certain subscribers” and “would be likely to include bandwith capping or shaping that would make it difficult for subscribers to continue file-sharing but other measures may also be considered. If appropriate temporary suspension of broadband connections could be considered”. These technical measures implemented at the Secretary of State’s behest may therefore include disconnection.
15. Article 10 of the HRA, the right to freedom of expression, includes within its definition the freedom to receive and impart information and ideas. This right is, of course, not absolute and can be limited to an extent shown to be necessary and proportionate in achieving a legitimate aim, for example protecting the rights of others. While the Government’s professed aim of protecting copyright is indeed legitimate, it is doubtful that this second model is a proportionate means of achieving that aim. Proportionality demands that in pursuing policies that interfere with rights, the least intrusive method of securing a policy objective is used. The automatic sanction of disconnection and other potential technical measures are by their very nature highly intrusive. The level of interference with the right to receive and impart information and ideas is made only more acute by the fact that we are in an age where people increasingly rely on the internet to allow them to gain access to information and provide information to others. That this Bill seeks to create two possible models for addressing copyright infringement – one that includes an automatic sanction and one which provides a mechanism to allow copyright owners to pursue suspected infringers in the court room – serves only to highlight the disproportionate nature of this second model.
16. What’s more, automatic disconnection is likely to be largely indiscriminate in its application. As mentioned above in relation to model 1, evidence of suspected infringement will not amount to evidence of a specific suspected infringer rather an account holder whose internet subscription may have been used by another to infringe copyright. Deciphering whether or not an account holder or another is the suspected infringer is certainly not possible at the stage at which technical measures would be imposed under this model. The likelihood is therefore that many who have not themselves infringed copyright will be subjected to the automatic sanctions including disconnection. Additionally, and also mentioned above in relation to model 1, internet use is often collectivist in nature. Whole households, workplaces, or communities can access the internet using one IP address. An automatic sanction of disconnection on suspicion of copyright infringement will therefore have a far wider impact than simply cutting internet access for a suspected infringer. Those who use the same connection will also have their right to receive and impart information and ideas unjustifiably interfered with.
17. Putting aside direct executive interference, the unwise order-making model and the automatic and severe sanction; Liberty believes that the wording of the power would need significant amendment. As it stands the order-making power is shockingly broad in its framing. While the explanatory notes state that the Government intends for technical measures only to be applied against copyright infringers, as currently drafted the clause allows the Secretary of State, by order, to impose a technical obligation on ISPs to apply technical measures against any internet subscriber for any reason. The power could not be framed any more widely that its current form. The order-making power will at best allow the Secretary of State to order that those suspected of copyright infringements have technical measures applied and at worst it will allow the Secretary of State to order any subscriber or category of subscriber to have technical measures applied for whatever reason. In principle, as drafted, the Secretary of State could require that ISPs cut off those using (or allowing others to use) the internet to access particular websites or services regardless of whether or not any copyright is infringed. The Secretary of State could for example order that those accessing websites that fit a particular criteria be cut off – for example political or religious websites considered to be extreme. It takes little imagination to envisage where such a power could lead. What has been described as a power to cut off illegal file-sharers is in fact better described as a power to cut of internet access for whomever the Secretary of State sees fit.