New House of Lords proposal could water down Digital Economy Bill

A new proposal by the House of Lords could weaken the effect of the most contentious aspects of the Digital Economy Bill, being: (i) obligations on ISP to assist in curbing online infringement; and (ii) the Government’s ability to modify the Copyright, Designs and Patents Act 1988 by order. (Thanks to Tom Watson for this tip.)

According to the House of Lords website, the following addition has just been proposed to the Bill by the Lib Dems:

“Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action is—

(a) necessary and proportionate to the goal of protecting and enforcing copyright, and

(b) that it appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights.”

What does this mean?

Any way you look at it, this proposal (if enacted) would restrict the power of the Government to act unilaterally in taking measures intended to curb copyright infringement. 

With the first condition (“necessary and proportionate to the goal of protecting and enforcing copyright“), the hook is of course that the Secretary of State must demonstrate that the proposed action is “necessary and proportionate“.  This kind of wording has been the cause of much litigation over the years, particularly over similar concepts in EU law.

With the second condition (“balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights…“), the Secretary of State would effectively have to certify that the proposed action complies with relevant human rights law – in particular, the European Convention on Human Rights, which enshrines such rights as: the right to fair trial; privacy; and freedom of expression.  (Interesting that the HL proposal does not refer to the Human Rights Act 1998, which imports the ECHR principles directly into English law – I wonder why not?)

A third condition, which is more subtle, is that the Secretary of State must “demonstrate before such action is implemented” that the proposed action complies with the above conditions.  So, the Secretary of State must do something to show he has complied with these conditions.  It is not clear what at present:  perhaps making a declaration or issuing a statement of compliance.

A fourth condition, which is more subtle still, is that the mere existence of this provision in the Digital Economy Act (when it finally becomes law) would mean that, if the Secretary of State wants to take action but fails to comply with the above conditions, then it is theoretically possible that the Government could find itself the subject of a judicial review challenge in court.  Obviously whether or not any such challenges would succeed would depend on the court, but the fact they could happen at all may give the Government pause for thought.

What next?  Is this all a storm in a teacup?

The Bill has recently completed its second reading and is due to go to a HL committee on 20 December 2009. This proposal will need to be discussed by the committee and, even if it is kept in the Bill, there is no guarantee that it may not be struck out in subsequent readings. So it is quite possible that this proposal may not make it into law.  Or it may survive, but perhaps in an amended form. 

But, either way, it reinforces again the point that some of the Lords are working to curb the Government’s ambitions in the Digital Economy Bill.  Watch this space…

The fallback position for human rights campaigners

One very last thought.  As a result of the Human Rights Act 1998 (section 4 if you want to be precise), the Court has the power to declare that an Act of Parliament is incompatible with the fundamental human rights contained in the ECHR, at which point the onus would be on the Government to amend the Act to make it compatible (or risk the public controversy that may follow by the law being declared to breach fundmental Convention rights).

Getting that far would be difficult, since the Court will not easily make a declaration of incompatibility (in fact it has a legal obligation to read legislation in a way compatible with the ECHR so far as possible) – but it is possible.

SO, even if none of the above proposal makes it into law, then in theory it may still be possible for campaigners to bring a legal challenge against the Digital Economy Act (once it comes into force) on the basis of incompatibility with fundamental human rights.  Again, whether or not that ever happens and, if so, what the Court decides, we’ll have to wait and see…

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