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It is interesting that, yesterday, the noble Lord, Lord Rooker, made a significant contribution about post-legislation scrutiny. Of all Bills, this is one which should have had pre-legislation scrutiny. It would have been, I am sure, a very effective Bill had the time been made available for that. I am assured by my own party that if it forms the next Government, it intends to bring back at an early stage a Bill to rectify the deficiencies which sadly exist in the present one. I hope
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Lord Young of Norwood Green: My Lords, I will respond generally to what seems to be the Lib Dems' rallying cry in this process about the wash-up being a stitch-up. Inevitably, during the wash-up process I cannot help thinking of that quote from Hobbes about life being "nasty, brutish and short". There is an element of that to the wash-up, but I do not think it is any different from how it has been previously. We had that debate yesterday so I do not want to reiterate that.
I think there were two comments about the Bill not having received adequate debate from the noble Lord, Lord Clement-Jones, and then the noble Viscount, Lord Bridgeman. I cannot help smiling and thinking about the many days we have enjoyed each other's company in this Chamber as we went through approximately 750 amendments to a 48-clause Bill. There are many things that one could say about the Bill but that there has been a lack of scrutiny in this Chamber is not one of them. Maybe it would have benefited from pre-legislative scrutiny; my inner jury is still out on that, having seen the process elsewhere, but I bow to others with more experience. Maybe they are right.
Inevitably, compromises have been made. It is no secret where this Government stood on the question of IFNCs in relation to the points made by the noble Lords, Lord Fowler, Lord Clement-Jones, and others. It was a good move on the part of the Government. We would have been able to establish some effective pilots in an area where competition would certainly be beneficial. Following that bit of dialectic between my noble friend Lord Maxton and the noble Lord, Lord Fowler, in one respect I agree with my noble friend: we are not going back to the 1950s. There is a different media landscape. Nevertheless I also agree with the point made by the noble Lord, Lord Fowler. I do not dismiss the quality of professional journalism quite so readily.
I think the question was, does this mean that IFNCs are dead? It means that securing the plurality of local and regional news becomes even more difficult, and that the risk of a decline of local and regional television news is even more acute, as the noble Lords, Lord Fowler and Lord Clement-Jones, drew to our attention. While IFNCs may still come together in some form as a market-based proposal, the question of whether public funding should be used will need to be dealt with by whichever Government are in office after the election.
Reference was made to the costs of the parties who bid for the pilots. Throughout the procurement process we have made it clear that the Government will not fund, nor are liable for, third-party costs associated with the bidding process.
Lord Young of Norwood Green: I cannot say any more than I have done. As I say, whichever Government are in office after the election will have to take that decision. They will need to decide whether public funding should be used.
Lord Clement-Jones: My Lords, I am sorry to make the Minister jump up and down in this final session and I hope that I will not have to make him do that many times today but the fact is that the identity of those running the pilots is already known. The contracts were about to be signed. The Government could have signed those before the start of purdah but have not done so and therefore the pilots fall. They will not take place. Is that not utterly clear?
Lord Young of Norwood Green: The pilots are separate from the provisions in the Bill as the pilot process has been run by the Government. It will be for whichever Government are in power after the election to decide whether they will award and fund the IFNC pilot contracts. Signing the contracts will again be a matter for whichever Government are in power after the election.
With regard to the points made on copyright by the noble Viscount, Lord Bridgeman, I thank him for his thanks. It was a pleasure to co-operate to try to resolve this but criticism should be levelled rather at his own Front Bench. Other options were possible. We could have handled this in a different way but this is the best, or the least worse, compromise that we could achieve in the wash-up. I believe that I have answered the points that were raised in the debate.
Lord Young of Norwood Green: My Lords, I beg to move that the House do agree with the Commons in their Amendments 2, 6, 7 and 8. This will have the effect of removing the Clause 18 text inserted in this House. Amendments 7 and 8 introduce two new clauses to replace Clause 18. I will focus on these last amendments since this sets out the way the Government think we should proceed.
As I said in this House when Clause 18 was debated during the Bill's Third Reading, the Government did not believe that Clause 18 as inserted during Report
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The new clauses introduced by Amendments 7 and 8 achieve the same effect desired by Clause 18, but with proper consideration and safeguards. The key benefits of this approach are that, as a power to introduce regulations, it is enforceable. It does not immediately fall foul of the technical standards directive as the existing text would. There will be proper opportunity to consult on the measure, and for Parliament to consider it via the super-affirmative procedure, with any recommendations having to be taken into account. The Secretary of State must consider the proportionality of the regulations, and the evidence that they are necessary to address infringement that is having a serious adverse effect. We can also ensure that any security and law enforcement concerns are properly taken on board.
In addition, should such regulations be introduced, the court will also need to consider carefully legitimate uses and users affected by any injunction as well as having due regard to freedom of expression. We have no intention of this clause being used to restrict freedom of speech. That concern has been expressed by a number of people in the past few days. We are also seeking to ensure that these safeguards are properly considered and ISPs will have no incentive to block sites purely on the basis of an allegation for fear of bearing costs, though at the same time we would need to ensure that ISPs are not allowed to flout the court.
All in all I would say that new Clause 18 does the job of addressing online infringement that is not done through unlawful file-sharing, with the safeguards needed to ensure that the position of internet intermediaries and citizens is properly protected. On that basis, I hope that noble Lords will agree. I beg to move.
Lord Howard of Rising: My Lords, the Government's amendments contain several technical and substantive improvements to the original. The improved consultation measures that Amendment 8 contains are welcome. I will therefore support these amendments should the noble Lords to my right continue to object to the very clause they moved and supported on Report.
Lord Clement-Jones: My Lords, on Report-the Minister clearly set out the history of the provisions-these Benches, together with the Conservative Benches, proposed a new clause to give courts the power to grant injunctions for internet service providers to block access to certain online locations which host copyright material. This new clause was inserted in good faith with the very best of intentions to remedy a major problem relating to overseas websites. However, it soon became clear that it was too blunt an instrument.
At Third Reading, on these Benches we attempted to tidy up the amendment, and the Government promised to bring forward their own amendments. We have now seen those amendments. We had reasonable expectations that our amendments would be subject to proper debate in the other place. But, frankly, we must conclude
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This is far too wide-ranging and puts even sites such as Google at risk. Google naturally throws up links to sites that encourage online copyright infringement or make peer-to-peer file sharing possible.
Injunctions can be used against not just sites that are making this material available in the present, but sites that have done so in the past or are likely-I repeat, likely-to. This is a very wide range of definitions which mean that innocent sites could be caught out. This brings to mind the Tom Cruise film, "Minority Report", in which people could be arrested for crimes that they might commit. There is insufficient indication that the rights holders must take reasonable steps to notify the site owner before seeking an injunction. The proposed new clause states that the courts will have to take account of evidence that the rights holder has taken steps to prevent infringement of their material. There is no specific stipulation that the site owner must be contacted first or what this contact must consist of.
The proposed injunctions would be indefinite, which is inappropriate, although there is room for this issue to be addressed through further, unstated, regulations. Injunctions will not cover all service providers. This would allow infringing customers simply to go to a different provider and put ISPs to a great deal of trouble for no reason or, even worse, warp the market by disadvantaging the big internet service providers which are relatively easy targets and driving copyright infringers towards the smaller ISPs that are less likely to be hit with injunctions.
There are some saving graces. The new super-affirmative procedure is of course an improvement, but this should not be enough to save the proposed new clause. The highly unsatisfactory nature of the process in the other place and the wash-up means that a flawed clause could remain on the statute book. We are faced with a take-it-or-leave-it situation. On these Benches, we would leave it.
The Earl of Erroll: My Lords, I should like to make a few comments on this proposed new clause. I agree with the noble Lord, Lord Clement-Jones, that we should leave out the proposed new Clause 18 which the Liberal Democrats produced at the last moment and we should leave out the Government's proposed new clause also. It was a very good effort, and I thank the Minister and his Bill team for working on this and producing something as good as this. It tries to reflect very much the tenor of the debates on this wide-ranging power and how it should be limited to blocking internet websites.
The challenge comes with the wording. This is important because, at the end of the day, the courts will decide how this will be interpreted on the basis of what is written down. It is not up to ministerial statements. The Secretary of State may be making the regulations, but if he is not careful about how the
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in relation to a site that may contain infringing material. The previous time that I had this debate was on amendments to the Computer Misuse Act when we were talking about hacker tools. The Government said that that phrase meant, "more likely than not". In other words, there was a 50:50 test on that. This is how lawyers regard it. I do not know if that will apply this time, and whether the issue will be interpreted that way in regulations.
They also state that an "information society service" relates to services within the meaning of Article 1(2) of directive 98/34/EC, as amended by directive 98/48/EC. At that point, I needed to obtain the help of the Library staff.
and so on. That did not help very much, so the Library found two pages from a guide to the Electronic Commerce (EC Directive) Regulations 2002 published by the Department of Trade and Industry, as it then was. We eventually find that a provider of information society services is anyone doing all sorts of economic activities online, and in particular,
So it is not just the person providing access, but everyone who provides tools for the access or facilitates it, whether or not any remuneration is involved. There is not just one service provider, but multiple service providers apart from the person who owns or hosts the site and the material. I mention this so that perhaps, even if the clause is forced through, the Secretary of State may look at this when drawing up regulations, because it is far too loose and will cause chaos. It will end up being a dream for lawyers, because at the end of the day it will be tested in the courts.
The main difference between Clause 18 and Section 97A of the Copyright, Designs and Patents Act 1988, which allows for this sort of injunction to be taken out by a court, is that the latter refers only to the High Court, so that people who find their copyright infringed will find taking action too expensive. This will allow it to be done by any court. Therefore, it could be done in a very junior court: I do not know if that could include a magistrates' court, or whether it would have to be a county court. This will lower the bar so that the people considering it will not necessarily be so well qualified. It will be interesting to see what happens.
I declare an interest as a director of a very small start-up search engine for business purposes. It is not a rival to Google or anything like that. However, if someone decided to knock us out, they would only have to threaten an injunction and we could not do anything about it. We would definitely come under the definition of service provider. That is not special pleading: I am pleading on behalf of all the people who provide services online, which might involve copyrighted text. It is not just film and music: this covers photographs, text and all sorts of other things. That is the problem. The Bill is trying to cover everything instead of distinguishing different forms of online provision.
I would prefer to see Clause 18 knocked out. I agree with the noble Lord, Lord Clement-Jones: we should come back to this very serious question in the next Parliament. That would be a far more sensible way to behave, instead of seeing lawyers make a lot of money and seeing money transferred from the general public, from universities and from all sorts of other establishments to large copyright holders who are mostly resident abroad.
Lord Young of Norwood Green: My Lords, I was pondering the response of the noble Lord, Lord Clement-Jones. I did not know whether to describe it as a Damascene conversion or a volte-face. Nor did I know the cause of the change, although I suspect that it may have had something to do with the Liberal Democrat conference not that long ago.
We responded to the demands of this Chamber that we should take away the suggestion about site blocking. We pointed out at the time that it was a very complicated area that would not be resolved by the previous suggested amendment. We have come back with our own amendment, which was endorsed by the Commons and which takes into account some of the concerns expressed, including, as the noble Lord, Lord Clement Jones, accepted, the super-affirmative procedure to provide additional scrutiny. I remind noble Lords that we were willing to incorporate that also into the ill-fated Clause 17 as another way of dealing with future concerns.
The noble Earl, Lord Erroll, raised the point about the definition of ISPs. We would not demur from the conclusions of his research. We agree that it would be an issue for any regulation, which is why consultation is required. I seek also to reassure the noble Earl that an injunction could not be dealt with by a magistrates' court: it would have to be a higher court. With this amendment we have endeavoured to take into account the complexity of what we are trying to do. We are keen to ensure that we safeguard freedom of expression
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(7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) ("the 60-day period"), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).
(8) In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period-
(9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).
Lord Young of Norwood Green: My Lords, as this House debated on several occasions during the Bill's passage, imposing technical obligations is undoubtedly a significant, and probably controversial, decision. That is why Clause 11 requires the Secretary of State to have regard to the assessment prepared by Ofcom as to whether they should be imposed, as well as to the reports prepared under Clause 9 of the Bill, and this House agreed that these should be published so that everyone can see the evidence that will inform the decision.
It is also right that Parliament should have the greatest opportunity to scrutinise and debate the order. The amendment made in the Commons introduces a super-affirmative procedure with a 60-day period, allowing ample time for Parliament to consider the order fully.
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