DEB - One Size Doesn't Fit All

The Digital Economy Bill was back on the Agenda in the House of Lords yesterday, this time at the report stage where the Government and other parties propose amendments based on the discussion in the Committee Stage.

There is some good news in that the Government now recognise that a single set of anti-infringement measures cannot be applied to everything from a house to a university and that advice on measures must

take into account the suitability of different protection for subscribers in different circumstances.

There is also recognition that many universities and libraries are already working effectively to reduce infringement:

[Universities] sit on infringement pretty hard when they detect it

and

Libraries also take proportionate and reasonable measures.

And there is a hint that acceptable use policies are recognised as a useful measure, and that the original focus on purely technical prevention may be shifting.

However there remains a significant question of how any organisation can know that its anti-infringement measures are sufficient. An amendment proposing that Ofcom publish guidance on acceptable measures was not accepted on the grounds that the ISP is best placed to recommend what measures are appropriate for each of their customers. Even if that were true, an organisation that follows its ISP's advice will still not be sure that this was sufficient as that decision can only be made by the Tribunal when the organisation appeals against an infringement notice. Although pressed, the Government would not go further than to

expect the appeals body to regard evidence that the subscriber had followed steps recommended by their ISP as very strong evidence of having taken reasonable steps.

And although reference was made to the Government's factsheet, there was no discussion of the serious problems with definitions that are confirmed there. That means that although it is now stated in the Bill that the ISP must advise on appropriate measures, we (and the Government) are still no clearer whether the ISP is JANET, the university, or neither.