The 3-strikes/graduated response measures in the Digital Economy Bill entail State-sponsored measures to limit Internet access. They will impact on fundamental rights. The government should fully justify why it wants to interfere with those rights.
A Parliamentary Joint Committee on Human Rights has examined the UK's proposed 3-strikes/graduated response measures, which occupy the lion's share of the inappropriately-named Digital Economy Bill. The Committee's report was released last Friday, and it contains a serious and exhaustive criticism of the Bill.
Although many news media are drawing the obvious conclusion that the Bill breaches human rights, I think it is actually more complicated than that.
In fact, the report highlights areas where there is a likely breachof human rights law and is critical of the Bill's drafters because there is insufficient information to determine whether there is a breach or not. This is just as worrying, because it means the government is trying to get away with a law that almost certainly will breach human rights, by manipulating the process.
The report acknowledges that graduated response measures are about the State taking positive measures to restrict the basis on which an individual user may access services from an ISP with whom he has an existing service contract and that measures taken to limit individual access to internet services by the State will engage Articles 8 and 10 ECHR.
The report analyses the Digital Economy Bill against the European Convention of Human Rights, as it is bound to do under the UK legislative process. It considers the Bill against Article 6 - right to due process(1.48); Article 8 - right to private life and correspondence; and Article 10 - right to freedom of expression(1.36) . It found that these three fundamental rights are ‘engaged' by the measures in the Digital Economy Bill.
Article 6 was the key one for the EU Telecoms Package final agreement on the Framework directive Article 1.3a. The report is clear that (1.45) the exercise of powers pursuant to the proposals on technical measures are likely to involve the determination of civil rights, and so must provide for a hearing by an independent and impartial tribunal.
However, it goes on to find that the process as outlined in the Bill may comply with ECHR Article 6. However, it does stress that this is based on current information only, and that the information is insufficient (1.48). Apparently, it would comply if the user went through a full process of appeals before being cut off the Internet.
I would add here, that the Joint Committee on Human Rights did not have the same information as the House of Lords. In the recent Lords committee debate, it was revealed that the government wants to keep the number of appeals to a minimum by imposing a charge for lodging an appeal. And it anticipates the rights-holders will send users an out-of-court settlement, which was described in the Lords as ‘blackmail'.
Also, I note that the Joint Committee on Human Rights believe that the appeals body "must be independent of Ofcom, ISPs and rights-holders"(1.45). This is different from the way the House of Lords understood it, where it was labelled a ‘shadowy' body, and questions were asked about the composition and whether it could include rights-holders.
In my opinion, I do not see how the Bill could comply with Article 6, or with the EU Telecoms Package under these circumstances.
The Joint Committee on Human Rights found that terminating Internet access is interference with the right to private correspondence, and arguably also with the Article 10 (1.30). I note that this is a similar take on the issue to the French Constitutional Court, which said it was a breach of the right to freedom of expression, where the Internet is the means by which we exercise this right. (And it in line with the Council of Europe's analysis).
The problem is that most of the detail is not in the Bill because the government wants Ofcom to write it afterwards. This would enable it to be written secretly, without scrutiny of either the public or Parliament. The keyword here - when reading the Report - is "on the face of the Bill". This phrase means it is defined in the law. Most of the detail is NOT "on the face of the Bill".
This concern has been repeatedly highlighted throughout the Report. Parliament will not know, and will not be able to make any determination about, these measures because Ofcom will be writing them.
The report believes this is a serious problem because, as the above examples illustrate, the government's proposed measures in the Digital Economy Bill do ‘engage' human rights issues, and therefore Parliament should have the right to detemine whether the measures should go ahead or not.
The government has tried to get away with stating that the measures do not have any impact on fundamental rights. Lord Mandelson's reply to the Joint Committee is illuminating. He states that government interference in people's private communication is justified for the protection of copyright. (1.16) " The Minister goes on to explain that if these rights were engaged, the Government's view is that any interference would be fully justified"
However, the Joint Report disagrees:
1.36....it is generally accepted that measures taken to limit
individual access to internet services by the State will engage Articles 8 and 10 ECHR
1.37 Since the rights outlined above are engaged, the Government has a responsibility to demonstrate its justification for interfering with them.
The Joint Committee on Human Rights wants to see a fuller assessment of the proportionality of the measures, balanced against these fundamental rights.
On the controversial Henry VIII clause (Clause 17) the Joint Committee on Human Rights says it is ‘overly broad'. The concern is that this Clause could be used to bring in new copyright enforcement laws which would breach fundamental rights and Parliament would not be able to do anything about it.
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010)Does UK 3-strikes law breach human rights? http://www.iptegrity.com 8 February 2010