1709 Blog: for all the copyright community

Tuesday, 7 July 2009

The devil’s in the Digital

The UK government’s Consultation on Legislation to Address Illicit Peer-to-Peer (P2P) File-sharing published on 16 June contains (at least) one significant, misleading error. In a section titled ‘What’s happening elsewhere?’ it states:
‘On 6th May the European Parliament passed an amendment to the Telecoms Package which said:

"Article 8f(b) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened or for other legitimate reasons in which case the ruling may be subsequent".

At the time of writing it is not clear whether this amendment will stand, or whether it will be the subject of a conciliation process.’
The words that I have made blush red are not in the amendment (Amendment 138) passed by the Parliament.

As discussed in an earlier post, Amendment 138 is a singularly inconvenient thorn in the side of the UK government. If finally adopted, it would prevent the Government from requiring ISPs (at the ISPs’ expense) to cut off alleged illegal file-sharers without a prior judicial ruling – and, in my opinion, it would prevent ISPs from applying other ‘technical measures’ without a prior judicial ruling. But if the amendment said what the Consultation has it say, then it would present no such obstacle.

I asked Mike Klym, the enquiries contact for the Consultation, where these extra words had come from. He wrote: ‘At the time the consultation was drafted the position around Amendment 138 was very fluid and we acknowledged as much in the text of the consultation document. The text we included was a quote from information we had received at the time’. Which begs the question: who provided this information and why?

To get this wrong in the consultation document does not inspire confidence. Is this mere incompetence? Conspiracy theorists might argue that (a) it’s too much of a coincidence to have made this of all mistakes; (b) the text in the Consultation did not appear in any earlier version debated in Brussels, so its inclusion couldn’t have been a simple administrative error (unless of course it is the wording that the UK government is going to try to promote in the upcoming negotiations with the European Parliament); (c) the currently agreed wording was fixed six weeks before the Consultation was published and the Consultation had no difficulty reporting the decision of the French Constitutional Council on 10 June; (d) Amendment 138 is a political hot potato and should have been proofread carefully – the European Commission were debating it on 11 June and Lord Carter gave a statement about it to the Lords on 17 June; (e) even though UK law must ultimately comply with the final Telecoms Package and the UK Consultation doesn’t directly affect the outcome of the Telecoms Package debate, it could have an indirect effect. The mis-cited Amendment 138 gives the impression that the UK government’s proposals are palatable and widely accepted in Europe, which they are not. This helps to forward the Government’s case in shaping the Digital Economy Bill. If the UK government makes headway with its national legislation it can use any progress as a bargaining chip in the EU debate (as the French government did with their HADOPI law) since the two processes are evolving in parallel.

But conspiracy theories are for lunatics … aren't they?

Mike Klym’s response to my enquiry can be read on the 1709 Copyright Blog Google Group, which can be joined by subscribing on the right-hand side of this blog's web page.

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