Digital Britain meets Amendment 138

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.