The ISP industry is up in arms today as the House of Lords yesterday rushed through ill considered amendment 120A to the Digital Economy Bill proposing to allow rights holders to serve notice on ISPs to block access to sites considered by them (rightsholders) to have illegal content – music, movies, software etc.
This is a huge issue. Rightsholders would be able to ask ISPs to block sites without a court order. If an ISP refuses and the rightsholder subsequently succeeds in getting a court injunction then the ISP will have to pay costs.
In this way the onus is on the ISP to determine guilt and not the court which ain’t right.
Courts in fact already have the power under 97A of the Copyright, Designs and Patents Act to grant an injunction requiring ISPs to block access to sites that contain unlawful copyright content.
97a strikes an appropriate balance between the interests of different parties and leaves the court free to consider each claim on its merits and independently of other factors.
Amendment 120A, however, abandons this balance, introduces a bias in favour of one party (rightsholders) and limits the court’s discretion to judge each case on its merits. There would appear to be no “equality before the law” under this amendment.
During the amendment debate comparison was drawn with the Internet Watch Foundation and the blocking of illegal child pornography sites. No sensible person would suggest that independently-assessed illegal child sexual abuse content can be compared with alleged unlawful breaches of the copyright of commercial companies.
Moreover the IWF blocking list is small and relatively cheap to operate. Amendment 120A could see the list of blocked sites grow to enormous proportions. Furthermore there is no mechanism in the Amendment to take sites off the list. The costs of operating this filtering will astronomical and it is fair to say will “break” the internet in the UK.
Another point is that there is no clarity here whether it is infringing content that will be required to be blocked, or whether it is an entire website. New market entrants that are involved in user created content of any type will be liable to being blocked if some of the user generated content is deemed to be illegal. Goodbye innovation, it was good to know you.
Potentially this is the thin edge of the wedge. Once copyright breaching content filtering is required by law then it becomes a defacto mechanism for ‘other’ content to be blocked.
ISPs currently have the defence of “mere conduit” under which they cannot be liable for illegal content provided they take action as soon as they are aware of the illegality. This amendment chips away at that defence.
If Amendment 120A makes it into law it is going to cause real issues. The longer it goes on the more problematic the Digital Economy Bill appears to be. The industry Trade Association ISPA has put together a very strongly worded resonse to the Government on this which can be found here.