Parliamentary Human Rights Committee vs Digital Economy Bill
Jim Killock, 05 February 2010
The Joint Committee on Human Rights has released their analysis of the Digital Economy BIll, which has a pretty damning conclusion: we have a the right to a free trial. We must be presumed innocent. An the EU’s ‘internet freedom’ matters.
Read it, get angry, and take action!
Right to fair trial
One serious concern is around the lack of sufficient due judicial process. At the moment the Bill defines a process of appeals with no presumption of innocence. This process will be applied irrespective of the sanction or evidence. Natural justice dictates that the accused must have the opportunity / right to (before any sanction is imposed) a prior hearing decided upon by an independent third party where they are assumed innocent and the onus is on the ‘prosecution’ to prove guilt. In the particular case of disconnection – which is a severe punishment the need for a prior hearing based on an innocence presumption is unquestionably essential (irrespective of whether it is notionally considered a ‘civil offence’ or not).
We think that proposals are inconsistent with intent of the new ‘Internet Freedom’ clause and probably the letter of the clause as well. The text itself says “… measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed”. Mme Reding said yesterday “Effective and timely judicial review is as much guaranteed as a prior, fair and impartial procedure, the presumption of innocence and the right to privacy.” We simply cannot see how any fair reading of this clause could not sensibly conclude that in the case of disconnection a prior hearing based on an innocence presumption is required.
Proportionality
Alongside these concerns is a more general concern about the lack of proportionality in that, where citizen rights are threatened, proportionality requires that the least intrusive means is used to address a problem. The concern with s11 is that the way the reserve powers are cast means that there is no requirement to ensure that the most proportionate route is used or even attempted.
Conclusion
As we detail below the first model is preferable to the second model proposed under clauses 11- 14 of this Bill from the point of view of human rights. That is not to say however that it is not without its problems and difficulties as set out above. A fundamental problem with the whole approach to dealing with illegal file-sharing in the Digital Economy Bill is the difficulty in identifying the actual copyright infringer.However, the first model is clearly a more proportionate approach than the second, which could lead to disconnection and could breach the right to freedom of expression. TalkTalk argue that no technical measure, such as disconnection, should be imposed on an individual without proper and fair due process including a starting presumption of innocence, the need for the rightsholders to prove ‘guilt’ and a process for ensuring that any sanction is proportionate to the particular circumstances. It is morally and legally wrong to impose sanctions without ex ante due process particularly given the unreliability of the evidence used as the basis of the allegations, and the fact that the human rights of many innocent internet users could be detrimentally affected.
