Government revises clause 18 to Digital Economy Bill

The amendment to clause 18 has failed to impress many digital campaigners

Industry experts have criticised the government's latest revision to the controversial clause 18 section of the Digital Economy Bill, which was announced yesterday in an attempt to ease its passage through the Commons before the general election.

Culture secretary Ben Bradshaw tabled the amendments to the clause (PDF), which refer specifically to forcing internet service providers (ISPs) to block certain web sites accused of infringing copyright, rather than individuals.

The amendment still allows the government to demand that ISPs block web sites, but would require more evidence from either the secretary of state or copyright holders to prove that a site was offering copyrighted material illegally.

Under the new amendment, the government would have to prove that the downloading of material was having a "serious adverse effect on businesses or consumers" and "whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests".

The amendment would make it unlikely that large sites such as YouTube would be blocked as this would have an effect on the legitimate interests of other users.

Furthermore, the government would have to prove that a site was "a location from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright" to achieve an injunction.

In further concessions, the amendment states that the regulations to allow copyright owners to apply for a court injunction would be laid before parliament in a 60-day period of consultation during which the evidence would be considered in both houses of parliament.

A draft of these regulations would also need to be presented to the European Commission under the Technical Standards Directive three months before they are due to come into force.

Additionally, the government said that ISPs would not face any court costs associated with the processing of injunctions against certain sites filed by copyright holders.

The department for Business Innovation and Skills said in a blog posting that the replacement clause "ultimately achieves the same effect, while addressing the concerns expressed regarding the current clause".

Business secretary Lord Mandelson also wrote a letter (PDF) to shadow culture secretary Jeremy Hunt, in which he explained the reasoning behind the government's changes to the clause.

Mandelson acknowledged in the letter that there was a "clear and substantial appetite among businesses and consumers to be consulted on this matter before it becomes law".

"In brief, this [amendment] would give the secretary of state a limited power to bring forward regulation to allow copyright owners to apply to the court for an injunction," he wrote.

"The injunction would require ISPs to block access to specified internet locations which have been, or are likely to be, used to provide access to a substantial amount of material that infringes copyright."

However, Robin Fry, a partner at law firm Beachcroft LLP, argued that the wording of the amendment would actually result in less scrutiny and less for the government to prove in order to have a site blocked.

"Web blocking could happen without any proof of copyright infringement - just if the court thinks it 'likely' that a site might be used 'in connection with' copyright infringement," he said.

"There are serious issues here but there'll be no adequate debate on this. We'll be left with a precipitate and unfair law and a deeply worrying precedent. "

Sean Dyer, a candidate for the Pirate Party, agreed that the wording of the amendment would give the government too much power to cut off access to sites.

"Some of the words used in the amendment, such as 'likely' and 'has been', mean that any site that the government only believes could at some point be, or has in the past been, guilty of copyright infringement could face being shut down without proof," he said.

"The amendment is just another example of the government trying to rush this Bill. What is needed is for the government to start again and consider everyone's position, not just the rights holders, but technology companies like Google."

Lilian Edwards, professor of internet law at the University of Sheffield, echoed these comments, arguing in a blog post that the use of the word 'likely' in the new amendment increases the scope for the government to shut down web sites.

"In essence this is a power in principle to block any site on the internet, any search engine and any P2P client site, however legal," she wrote.

Liberal Democrat chief whip Paul Burstow said yesterday that the party would not be supporting the Bill.

"I have told the government we won't support the Digital Economy Bill as drafted. There is not enough time for MPs to examine it in detail," he wrote in a Twitter post.

The changes will be applied to the Bill after its second reading in the House of Commons on 6 April, the same date that Gordon Brown is likely to ask for parliament to be dissolved in preparation for the upcoming general election.