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DEB: Clause 18 BIS

Posted by malcolm on Wednesday, March 31st, 2010 at 11:44

The government opposes the BPI-sponsored Clause 18 to the Digital Economy Bill (Court orders to ISPs to block access to specified Internet addresses), which was introduced by the Liberal-Democrats - although now even the Lib-Dems have seen the error of their ways.

Unfortunately, with no time left for proper Parliamentary scrutiny in the Commons, the government is bound by its commitment to produce a version of clause 18 that could survive a legal challenge for non-compliance with the Technical Standards Directive. This Directive requires the European Commission to be notified three months before any law with technical effects is introduced. Plainly there are less than three months before the election, so as expected the government has converted the clause from a measure in the Bill into a power for the Secretary of State to introduce the same provisions by secondary legislation (translating for foreign readers, a Ministerial edict subsequently ratified by a single vote in each of the Houses of Parliament).

The Department for Business has now released the text of the proposed new clause.

The government’s alternative measure also introduces a statutory requirement for consultation, and certain safeguards that must be considered by a court before making such an order. Crucially, these include a requirement for a court to consider the impact on freedom of expression, and whether a blocking order would have a disproportionate effect on any person’s legitimate interests (not just the ISP who is subject to the order).

Another very important change is that the Secretary of State may remove from the court any discretion to order the ISP to pay the costs of the court action - a complete reversal of the original, BPI-sponsored clause which would have the ISP always pay the costs. This change has been introduced to “ensure that there is no incentive on ISPs to block a site until or unless they have a court order requiring them to do so”. A major complaint about the original version of Clause 18 from ISPs was that they would be forced to block access to any sites complained about without a court order, for fear of paying massive legal costs.

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