The Digital Economy Bill — now under attack from quarters as diverse as Billy Bragg and the Federation of Small Businesses — threatens to grant Business Secretary Peter Mandelson’s successors the power to censor web content for any reason, and to punish innocent people for failing to prevent other people from infringing copyright.
The punishments being envisaged for copyright infringement might have, of course, included normal powers, perhaps to fine, as we do with fare dodgers, who commit what might seem a comparable financial offence.
But instead, Mandelson has opted for a medieval approach equivalent to banishment of the offender from everyday society: disconnection of them and their family or business from the internet.
The government knows full well that it cannot actually find out who has downloaded copyright material, only what internet connection has been used.
Because they are unable to identify actual infringers, the government has opted to use an iron fist and simply blame anyone whose internet account has been used for copyright infringement.
This has understandably got libraries and schools very worried, they too face the possibility of being disconnected because of the actions of their pupils.
Similarly, businesses such as hotels, pubs and cafes are getting worried that they too might be punished for the actions of their customers.
Additionally, the powers in clause 11, and the disproportionate punishments have worried groups like Liberty, and now Parliament’s Joint Committee on Human Rights, who said:
“We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression.”
Liberty warn that clause 11 might be used as a broad power of censorship, and point to the mis-application of widely drafted powers including Clause 44 “stop and search powers” introduced for terrorism, and now used to justify searching teenagers across London.
The Secretary of State could for example order that those accessing websites that fit a particular criteria be cut off – for example political or religious websites considered to be extreme. It takes little imagination to envisage where such a power could lead. What has been described as a power to cut off illegal file-sharers is in fact better described as a power to cut of internet access for whomever the Secretary of State sees fit.
The music and film industries have demanded harsh punishments for offenders, but insist that legal processes should be limited, must be paid for and ensured that there are no reasonable defences. Evidence alone is enough to get your business, community group or family cut off.
Copyright holders are mistaken to think that punishments are the key to getting their new businesses to work. Laws rarely work when they need to be backed up by harsh and unfair punishment, especially of the innocent: our sense of fair play will tend to conclude that something in the law itself is at fault.
Jim Killock is Executive Director of the Open Rights Group