Digital Economy Bill
TalkTalk believes the Government’s Digital Economy Bill has serious shortcomings in relation to the provisions on illegal file-sharing. It is their view that the Bill would be deeply damaging to the rights of consumers, and could lead to damage to the internet more widely, whilst failing to solve the underlying problem with file-sharing.
TalkTalk’s main concern that have is the lack of any proper justification of the ‘technical measures’ such as disconnection of alleged infringers or filtering of traffic. We think the measures are, in fact, unjustifiable.
To date there has been no proper analysis by the Government of whether such technical measures would be:
- proportionate and objectively justifiable – we think there are more appropriate penalties such as fines which are more suitable given the nature of the offence
- cost-effective – there has been no assessment of the likely costs (including harm to innocent people, reduced uptake and how it will discourage legitimate Internet usage) and the incremental benefits (that takes account of the efficacy and particularly the ease of avoid detection/’capture’). To date there has been no cost benefit analysis of any technical measure
- compatible with the new Telecoms Package that access should only be cut off if it is “appropriate, proportionate and necessary within a democratic society” and other legislation such as ECHR
According to the process outlined in the Bill there is no requirement for any such proper assessment or analysis to take place. The Secretary of State can decide to impose an order to introduce these measures based on whatever criteria they wish to use – this process is also particularly susceptible to ‘special pleading’ and lobbying by vocal interest groups. We believe that the potential introduction of any technical measures is simply too profoundly important not to be subject to full, proper and transparent analysis and Parliamentary and public scrutiny.
The same lack of justification is even more true of the s17 clause. It is such a broad ‘carte blanche’ that full, proper and transparent analysis and scrutiny is absolutely critical and must be based on primary legislation and full consultation.
The second concern is around the lack of sufficient due judicial process. At the moment the Bill defines a process of appeals with no presumption of innocence (appeals are based on a presumption of guilt). For such a severe sanction as disconnection and given the inability to accurately identify the actual offender (due to wi-fi hijacking) it is critical that there are proper protections against false punishment of innocent citizens. The proposals are also inconsistent with the intent of the new ‘Internet Freedom’ clause and probably the letter of the clause as well. For example, the text itself says “… measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed”.
The third concern is the absence of incentives (i.e. measures by copyright owners to encourage users to not infringe). They argue that the only way that there will be a sustainable creative sector is if it adapts to the new realities of the Internet. Given how easy it is to avoid detection the central pillar in any counter-infringement policy must be to encourage people to want to pay for content by offering attractive services and providing education on the impact of not paying.
The last concern is costs. When deciding who should bear costs the most important principle is beneficiary pays. The current approach where ISPs and by implication their customer pay some of the costs is inherently fair since innocent broadband customers are taxed to pay to protect the copyright of music labels.