The Digital Economy Bill will be pushed through before a rumoured general election in May.
According to a source quoted in the Guardian, the government has recognised that the bill ‘is not a vote winner' as it ‘recognises that the creative industries are a huge asset for the country'.
After the bill was criticised by the House of Lords earlier this week, Liberal Democrat and Tory peers Lord Clement Jones and Lord Howard pushed through an amendment allowing the courts to order web blocking for ‘substantially infringing' websites.
The Open Rights Group claimed that this was ‘appalling sight', as on the one hand Labour was pushing Clause 17 as a means to ‘future proof' copyright against new infringement, and on the other, the Lib Dems and Tories are pushing an approach likely to produce straightforward threats, bans and withdrawals of sites with user generated content.
The bill is expected to get its third reading in the House of Lords, when peers will get the chance to table final amendments to the legislation. It will then go to the House of Commons in a fortnight and if it proceeds to its second reading in a month, when an election is widely expected to be called, the Guardian source claimed that it could enter the statute book before parliament rises.
Writing on the Open Rights Group blog, former computer scientist turned barrister, Francis Davey said that the blocking plans were ‘technically defective', as there is no power to vary or discharge the injunction and the definition of ‘online location' is insufficiently precise as almost all internet gateways would be covered.
He said: “The most enormous defect is in 97B(4) - the proposed costs provision. An ISP told by a copyright owner that they are seeking an injunction will have the choice of block or face a costs bill.
“That is an unfair position in which to place an ISP who will usually have no knowledge of whether the claim is good or not (that evidence belongs to other people). There is no sanction against the operators of the online locations, it is the ISPs who are almost always going to pay costs, yet they are ex hypothesi innocent.
“Also, there is no requirement to notify the owners of the online location prior to the making of the application. What that means is that 97B(2)(b) appears to make the success or failure of the injunction depend on whether the operator of the online location has taken reasonable steps to remove material that they may not know exists (since there's no requirement to notify them), that may factor into ‘reasonable' but it's a weird way to put things.
“Something more like a digital millennium copyright act (DMCA) notice would surely be reasonable. Ditto (c) - how is the ISP meant to take reasonable steps when it may not know it should. Just completely the wrong way to go about it.”