DEB: Human Rights and Law Society of Scotland

April 6, 2010

The Law Society of Scotland, which earlier in its passage submitted evidence on the Digital Economy Bill, has taken the unusual step of expressing its extreme concern about the powers the Bill would grant OFCOM to slow or disconnect a user’s access to the Internet, without having to obtain a court order.

Jim McLean, convener of the Society’s Intellectual Property Committee says:

‘There is much in this Bill which is necessary to combat theft of intellectual property but it goes too far in one important respect. If the Bill were passed as it stands, it would mean that a subscriber’s internet access could be limited or even cut off on the grounds of an alleged infringement without any court having made an order against that subscriber.

This in our view raises serious concerns with the European Convention on Human Rights, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Following a Decision of the Conseil Constitutionnel, in France last summer, similar legislation (‘Hadopi’) proposed there was modified to impose a requirement for a court order in cases affecting subscribers. That decision was based on the French Constitution rather than the European Convention on Human Rights. But the issues about due legal process are substantially similar.

We believe the Secretary of State’s decision to state that the Bill as ‘compatible’ with that Convention should be reconsidered.’