Profile: Media lawyer, Patrick Gardiner, raises Digital Economy Bill concerns

It is not only campaigners who are concerned by the anti-piracy measures included in the Digital Economy Bill, legal experts are also at a loss to explain how the government can sanction giving future ministers seemingly limitless powers.

Patrick Gardiner, Media Partner at international law firm, Eversheds, believes that Lord Mandelson is probably trying to ‘future-proof’ the bill which had its first reading in the House of Lords today. However, in so doing, the Secretary of State for Business Innovation and Skills raises some very interesting legal arguments. Given that the bill is attempting to bring in throttling or disconnection for persistent illegal file sharers, he finds one part of the bill, in particular, is alarming.

“There’s a very vague section where it basically says that ministers can adjust the eventual Act without, apparently, putting any amendments before the Houses of Parliament,” he says.

“It seems a very odd section to put in the bill because there’s certainly been no consultation on this, as there has been on the wider issues of Digital Britain. To not consult on this and to then give minsters the power to change the law without any consultation in the future is just extremely odd. One can only assume Lord Mandelson wants to prevent future ministers from going through further consultation periods in the future as technology advances?”

How will it work?

Gardiner also reveals he believes there will be many questioning whether Ofcom, whom the bill entrusts to reduce piracy by 70%, will have the technology or manpower to police the throttling or disconnection programme outlined in the bill.

He is also concerned about the possibility of disconnection to impact innocent people.

“The obvious thing that strikes anyone looking at the bill is that the disconnection or throttling part really hasn’t been scoped out at all,” he says.

“While one can understand the government and copyright holders feeling the need to punish theft, because that’s exactly what it is, I don’t see anything in the bill which tackles the really tricky issues. If people are living in the same house and someone uses the shared connection to swap files illegally, do they all get cut off. How do you know who’s doing the sharing. Will the person paying the bill get cut off? What if that person is innocent and it’s somebody else in the house?”

Will it even become law?

Ultimately, Gardiner points out that it is ‘early days’ for the Bill and it may well be changed as it progresses through both Houses of Parliament. Given that an election is due next Spring, there is, of course, a question mark over whether the Bill will receive sufficient time to become law.

“Stephen Timms reckons there will be time, but I’m not so sure, it’s going to have to really get through quickly and I’m sure with sections that give ministers far-reaching powers in the future, it’s due for a pretty rough ride in both Houses.”

Tags: Digital Economy Bill, disconnection, Lord Mandelson, P2P, Patrick Gardiner, Peter Mandelson, piracy, pirates, Stephen Timms, three strikes, Throttling