The Digital Economy Bill completed its highly abbreviated journey through the House of Commons last night and now only requires the final approval of the House of Lords to become law. To get enough support from opposition parties two further amendments have been made to the later stages of the copyright enforcement provisions:
- Clause 11 is amended to require an additional period of Parliamentary scrutiny if the Secretary of State decides after 12 or more months of the warnings process that further technical measures are required.
- The contentious Clause 18 on website blocking has, as expected, been replaced by yet another version. However Lilian Edwards has pointed out that this new version only creates a power for the Secretary of State to create a power for the Courts to order the blocking of problem locations on the Internet. Should the Secretary of State wish to do so, there is an additional set of tests (sub-para (3)) that he must first ensure are satisfied: essentially that there is a serious problem, that creating blocking powers would be a proportionate way to address the problem and that doing so would not prejudice national security or the prevention of crime. If a rightsholder then seeks an injunction to block a particular location the court has to apply a further list of tests (sub-paras (4) to (6)), including at least proportionality and effect on free speech, to that specific request for an injunction.
A number of people asked at Networkshop how a “location on the Internet” will be specified – for example by URL, DNS name or IP address? The law doesn’t say. However it does require the court to consider whether an order will have a “disproportionate effect on any person’s legitimate interests”. Specifying locations in a way that avoids both a disproportionate effect on other sites from over-blocking and a disproportionate effect on the ISP from having to employ very expensive or disruptive technology to implement the block could be an interesting challenge.
