The government has introduced a new clause to the Digital Economy Bill that could lead to ISPs having to block websites that help people unlawfully share copyrighted material.
Clause 18, published in draft form on Tuesday, is due to be introduced after the bill's second reading on 6 April. The clause gives the business secretary the power to introduce regulations allowing courts to grant injunctions against websites that aid copyright infringement. The injunctions could be brought against "a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright", the clause states.
Lilian Edwards, professor of internet law at the University of Sheffield, said it was "incredibly dangerous" for the clause to propose injunctions against sites that are "likely to be used for or in connection with" copyright-infringing activities. She said the proposed regulations were "in theory wide enough to cover any site on the internet, any P2P client or torrent site, however legal, and any search engine on the internet".
The Department of Business, Innovation and Skills, which is behind the clause, had not responded to a request for comment on the scope of the proposal at the time of writing.
Clause 18 replaces a similar web-blocking amendment — numbered 120a — that was introduced by Liberal Democrat and Conservative peers in the House of Lords but was rejected as unworkable by the government.
In a Tuesday letter to the Conservative and Liberal Democrat culture spokespeople, business secretary Lord Mandelson outlined the thinking behind the new clause. He said that it improves upon amendment 120A by allowing for a three-month notification of the regulations to the European Commission — a requirement under the EU Technical Standards Directive. He also said the clause will require the business secretary to "consult widely before introducing the regulations".
Any regulations introduced under the clause would need to be laid before and debated by both houses of parliament before being approved, a measure known as the 'super-affirmative procedure'. Clause 18 also makes sure that courts consider the importance of freedom of expression before granting an injunction. In addition, it calls on the courts to weigh up "whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests".
Edwards, who is an adviser to the Open Rights Group, said on Wednesday that there is still "enormous amounts of vagueness" in Clause 18.
"It says nothing about the format for the takedown notice [that precedes] the injunction," she said. "It is quite likely that in some cases a court order won't be sought, so it would be nice to see a statement that an ISP should not block without a court order."
In addition, Edwards pointed out that the Monday verdict in the Newzbin copyright infringement case gave an indication that the whole concept of a blanket blocking order may be illegal. However, she noted that parliament can legislate to overrule the courts.
Andrew Heaney, the director of strategy and regulation at the ISP TalkTalk, told ZDNet UK on Wednesday that the proposed regulations "could be used to close down sites such as YouTube or indeed search engines". He complained there was no mechanism in Clause 18 to prevent excessive or vexatious use of these powers by copyright owners or to protect ISPs against the "legitimate claims of affected site owners who have been wrongly blocked".
"The government has built in more parliamentary scrutiny down the line but this should not obscure the fact they are introducing this major clause without the Lords or MPs debating it, nor the fact that the Digital Economy Bill is a misguided, futile piece of legislation that threatens the rights of broadband customers, will do nothing to curb copyright infringement and will most likely result in innocent broadband customers being disconnected from the internet," Heaney said.
The Digital Economy Bill, which in addition to copyright enforcement covers areas such as broadband coverage, commercial radio and photographers' rights, will have its second reading in the House of Commons on Tuesday — the same day on which the general election is widely expected to be announced.
If the election is called on that day, parliament will be almost immediately dissolved. That means the bill will skip scrutiny by MPs in the committee stage and go straight to a brief third and final reading in the Commons, then move on for quick approval by the Lords. This fast-tracked process is known as 'wash-up'.
According to Labour MP Tom Watson, pushing the complex Digital Economy Bill into law in this way would be a "constitutional impropriety". The Liberal Democrats said on Tuesday that they will not support the bill as drafted because there is "not enough time for MPs to examine it in detail". However, only the largest two parties — Labour and the Conservatives — would have the power to derail the bill during wash-up.