UK Parliament Watch

This Bill was presented to Parliament on 10 September 2014. This is known as the first reading and there was no debate on the Bill at this stage.

This Bill is expected to have its second reading debate on 7 November 2014.

This Bill is a Private Member's Bill. These are often not printed until close to the second reading debate.

So far the only available information is the smmary:

A Bill to prohibit the distribution of sexually explicit images via the internet and text message without the consent of the subjects of the images; to provide that mobile phones and other devices capable of connection to the internet be set by manufacturers as a default to deny access to pornography; and for connected purposes

The House of Lords Select Committee on Communication have published a report on social media offences. The committee more or less finds that general law on harassment and malicious communication etc are sufficient to cover the social media world. However the lords worryingly suggest that unanimous messaging should not be allowed with the onus on websites to verify ID before allowing users to post content or messages.  The report introduces itself as follows:

Legislation currently in existence, including the Communications Act 2003 and the Protection from Harassment Act 1997, along with the guidelines for applying them published by the Director of Public Prosecutions, are enough to ensure that criminal offences committed using social media can be adequately prosecuted, says the House of Lords Communications Committee in its new report.

However, the Committee is calling for more clarity from the Director of Public Prosecutions (DPP) as to when an indecent communication (e.g. revenge porn ) could -- and should -- be subject to prosecution under existing powers. It is also encouraging website operators such as Facebook and Twitter to speed up requests for identification of users from our law enforcement agencies, using powers already granted by Parliament. The Committee is also calling for better statistics on the balance of offences committed online and by traditional means, as well as the number of offences that are actually reported.

And the more detail conclusions are:

(a) the criminal law in this area, almost entirely enacted before the invention of social media, is generally appropriate for the prosecution of offences committed using the social media;

(b) there are aspects of the current statute law which might appropriately be adjusted and certain gaps which might be filled. We are not however persuaded that it is necessary to create a new set of offences specifically for acts committed using the social media and other information technology;

(c) the Director of Public Prosecutions' guidance for prosecutions involving communications sent using social media appropriately takes account of freedom of expression;

(d) what is not an offence off-line should not be an offence online. There is no specific criminal offence of bullying. We consider that the current range of offences, notably those found in the Protection from Harassment Act 1997, is sufficient to prosecute bullying conducted using social media. Similarly, sending a communication which is grossly offensive and has the purpose of causing distress or anxiety is an offence under section 1 of the Malicious Communications Act 1988. Although we understand that trolling causes offence, we do not see a need to create a specific and more severely punished offence for this behaviour;

(e) we would welcome clarification from the Director of Public Prosecutions as to the circumstances in which an indecent communication could and should be subject to prosecution under section 127 of the Communications act 2003 or section 1 of the Malicious Communications Act 1988;

(f) due to the frequent need to obtain evidence from abroad, it would be proportionate to extend the period for the investigation of offences committed using social media to be tried in a magistrates' court to be extended from 6 to 12 months;

(g) a number of statutes passed before the invention of the internet refer to publications in terms only of print media. For example, section 39 of the Children and Young Persons Act 1933 restricts reporting by newspapers in relation to children involved in criminal proceedings: electronic communications and social media are not caught; we believe they should be;

(h) there are often calls to increase the severity of sentence available for the punishment of these sorts of offences. We favour increasing the courts' discretion in this area but we would be reluctant for Parliament to require more cases to be tried in the Crown Court (i.e. judge and jury as opposed to magistrates), due to the implications for workload. Any increase in flexibility should be carefully monitored and the proportionality of the consequences considered;

(i) from our perspective in the United Kingdom, if the behaviour which is currently criminal is to remain criminal and capable of prosecution, we consider that it would be proportionate to require the operators of websites first to establish the identity of people opening accounts but that it is also proportionate to allow people thereafter to use websites using pseudonyms or anonymously. There is little point in criminalising certain behaviour and at the same time legitimately making that same behaviour impossible to detect. We recognise that this is a difficult question, especially as it relates to jurisdiction and enforcement;

(j) from our perspective, the only way to resolve questions of jurisdiction and access to communications data would be by international treaty. The question is relevant to many more areas of the law and public protection than criminal offences committed using social media and is politically contentious in most countries. This raises issues beyond the scope of this inquiry.

The right to be forgotten , the arbitrary removal of online material according to who shouts loudest, is wrong in principle and unworkable in practice, a parliamentary committee has said.

The House of Lords home affairs, health and education EU sub-committee has condemned regulations being drawn up by the European commission and a recent landmark judgment by the European court of justice (ECJ).

The committee points out that the EU's 1995 data protection directive on which the ECJ judgment relied was drafted three years before Google was founded.  The committee's chair, Lady Prashar, said:

It is crystal clear that the neither the 1995 directive nor the [ECJ's] interpretation of it reflects the incredible advancement in technology that we see today, over 20 years since the directive was drafted.

We believe that the judgment of the court is unworkable for two main reasons. Firstly, it does not take into account the effect the ruling will have on smaller search engines which, unlike Google, are unlikely to have the resources to process the thousands of removal requests they are likely to receive.

Secondly, we also believe that it is wrong in principle to leave search engines themselves the task of deciding whether to delete information or not, based on vague, ambiguous and unhelpful criteria, and we heard from witnesses how uncomfortable they are with the idea of a commercial company sitting in judgement on issues like that.

We think there is a very strong argument that, in the new regulation, search engines should not be classed as data controllers, and therefore not liable as 'owners' of the information they are linking to. We also do not believe that individuals should have a right to have links to accurate and lawfully available information about them removed, simply because they do not like what is said.

The House of Lords has cleared the last hurdle for parody and private copies to be legal under copyright law in the UK. Several new limitations to update copyright were agreed in June, but private copying, often called format shifting, and parody were held back, creating fears that they might be dropped.

Reform of outdated copyright laws has been a major campaign focus for the Open Rights Group (ORG) from day one. We asked for these changes when the then Labour government launched a major health check up of copyright law in 2006, the Gowers review. Pressure from industry lobby groups stalled the reforms proposed at the time.

It has taken nine years, and another comprehensive review of copyright by Professor Ian Hargreaves, to get these proposals agreed. We engaged in many rounds of detailed consultation, argued for the changes in round tables and meetings, and got people to sign our petitions and create infringing parodies at righttoparody.org.uk.

For most people copyright is an arcane subject. Our friends and family aren't even aware that by copying their own legally purchased CDs to their iPod or that by making spoofs such as Downfall parodies, they have been breaking the law.

The proposed reforms are quite modest. Despite protestations from industry about the potential impacts of the new parody exception, the law has very strong constraints. It is framed as a fair dealing exception, meaning that by definition it will only be acceptable if it has no negative impact on the revenues generated by the original. In addition, the exception does not affect any moral rights the author may claim, for example around derogatory treatment.

We will have to make sure the new parody right can be used and isn't inappropriately challenged in the courts. But it has to be said that getting parody onto the statute book is a major achievement for the government and those who supported the proposal, including campaign groups, and comedians and YouTube parodists who joined us in our campaign. It was striking in the debate how many of our arguments were put forward by Baroness Neville-Rolfe for the government:

The new private copying exception is also relatively modest, although again a very significant step forward for the UK. The exception is limited to personal use of lawfully obtained originals, and does not allow any sharing of the works, including with close family members. It also does not allow for the removal of any anti-copy technical protection measures, including those found on most DVDs and Blu-Ray discs. Given most media consumption is moving to a pure digital environment constrained by such measures, it remains to be seen how effective the new right will be in practice. How many people will be ripping CDs in ten years time?

This Xmas tree bill is currently getting the attention of the Lords and a number of amendments have been moved in the past few days.

The amendments to the "rape porn" clause 28 seek to broaden the DPA still further and if enacted would seem to criminalize just about every BDSM image which includes a real looking individual. They would move the offence way beyond the limited kind of real (highly unlikely) or (overwhelmingly) staged rape images covered by the current bill's wording.

Another brand new clause, 42B, is megalomaniac stuff about "licensing" foreign beamed in hard porn ( presumably leading to attempts to extradite foreign citizens who breach such a UK law?).

The movers of these amendments are:

• Baroness Thornton (Labour. LSE Fabianite)
• Lord Beecham - formerly Jeremy Beecham of Newcastle city council ( a Labour Justice shadow).
• Baroness Howe of Idlicote (Mrs Geoffrey Howe. Crossbench) - renowned censorship enthusiast (42B only)

Baroness Thornton, Glenys Thornton, is a Labour member of the House of Lords and is married to John Carr - one of the most outspoken advocates of limiting internet porn to ‘protect the children’.

Beecham's part in all this is of some significant concern. Being part of Labour's justice team it could be here we are seeing the kind of broad brush criminalization using the DPA which would come out of a future Labour government - the possibility of which is not very distant.

The debate on the clauses -

See Clause 28 amendments and new 42B (42A in the Hansard extracts)-

Thornton and Beecham were seeking to remove the "disgusting/obscene" etc part of the DPA. This leaves a far wider amount of material liable to prosecution as 'Extreme Porn' such that softcore and perhaps even sexy horror films could be then be included. 

Thornton's words about "cultural harm" (that is some nebulous subjective concept of the sort which figures so importantly in the sloganizing propaganda of the obsessive agitators - a quite different thing to careful, well researched real world solid evidence of harm, which should be the basis of all legislation in a rational democracy) illustrates the nasty totalitarian concepts being used bit by bit to create criminal laws.

For the moment Lord Faulks (Conservative. Justice) for the govt politely bins the amendments, which are withdrawn by their sponsors.

On clause 28 he says:

Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Thornton seems to regard not criminalizing all material she and her cronies regard as causes of "cultural harm" as "loopholes", rather than representing limits and balances to counter totalitarian statism.

On new amendment 42B (42A in Hansard)-

Lord Faulks points to the ISP filter system as the government's way of addressing access to adult material, including that coming from outside UK jurisdiction.

Thornton asserts it's not working. Has she told Ms Perry yet? Apparently Thornton has "clear evidence" of the harm being done to children by this material. Has she really? So, Thornton and her pals want to supplant/supplement one unworkable failed system with another.

But for the moment the plans are thwarted and the amendment was withdrawn.

Open Rights Group rights:

Parliament has a done a terrible thing. They've ignored a court judgment and shoved complex law through a legislative mincer in just three days.

But in doing so they won't have had the final word. You've already shown them the growing public opposition to mass surveillance. There was incredible action from supporters: 4458 of you wrote to your MPs with even more phoning up on the day of the vote. Together we helped 49 MPs rebel against the Data Retention and Investigatory Powers Bill. It may have passed, but thanks to you they know that we do not agree.

Whilst Parliament swallowed Theresa May's tired arguments that terrorist plots will go undetected and these are powers and capabilities that exist today , she failed to make a compelling argument that holding everyone's data is necessary and proportionate. Frankly, the Government was evasive and duplicitous, and they were in a hurry to cover their tracks.

Tom Watson MP described the process as democratic banditry, resonant of a rogue state. The people who put this shady deal together should be ashamed.

And the European Court's decision was very clear: blanket data retention is unlawful and violates the right to privacy.  The courts will have the final say on whether DRIP breaches human rights. And no matter what David Cameron believes, the UK has international obligations. The European Convention on Human Rights, the European Charter of Fundamental Rights and our own Human Rights Act -- all exist to defend our rights and are where we will be able to challenge DRIP.

We're already meeting with lawyers and taking Counsel's advice to work out the best way to take the Government to court. We will work with every other group who is willing to help. But a major legal battle like this is going to be tough. The more resources we have, the more we'll be able to do to stand up to DRIP.

ORG ask people to join their campaign against mass snooping.

Offsite Article: Peers criticise government over emergency data laws

21st July 2014. See  article from  bbc.co.uk

Dissecting DRIP - the emergency Data Retention and Investigatory Powers Bill

14th July 2014. See  article from  cyberleagle.blogspot.co.uk

What does DRIP do? With so much material appearing at such short notice, considered analysis is difficult. Here are some first impressions. DRIP, now with its accompanying provisional draft regulations which appeared on the Home Office website yesterday afternoon, has to square a circle.  Ideally it should make a plausible attempt to address the 15 or so fundamental rights grounds on which the ECJ held that the Data Retention Directive was invalid.

In reality DRIP cannot square the circle. Indeed the newly published Impact Assessment recognises that the legislation does not overcome all the ECJ stumbling blocks, claiming only to address the ECJ judgment "where possible" and "to the extent practicable".  It also acknowledges the "Risk of being perceived as ignoring the ECJ judgment".

We should recognise that DRIP does far more than replace the 2009 Data Retention Regulations.  It makes substantive changes to the interception warrants, interception capability and communications data access provisions of the Regulation of Investigatory Powers Act (RIPA).  The Home Secretary has justified these amendments on a different basis from the data retention legislation: an urgent need to clarify, in particular, the territorial scope of RIPA's interception and communications data acquisition provisions. These are the non-data retention aspects of DRIP.

• Clause 4 addresses the government's concern that it should be able to apply RIPA to non-UK companies that provide communications services to the UK public.

• Clause 5 broadens the RIPA definition of telecommunications services. The Explanatory Note says this is so that webmail providers are clearly caught.  The change will also have implications for data retention because of crossover into DRIP.

• Clause 3 places a further restriction on the general purposes for which interception warrants and communications data acquisition notices can be issued.  This will bring RIPA into line with the existing codes of practice.

Whatever the merits of the non-data retention amendments (more on that below), it is debatable why any of them requires emergency legislation to be fast-tracked through Parliament at such breakneck speed.

...Read the full article

Liberty, Privacy International, Open Rights Group, Big Brother Watch, Article 19 and English PEN briefing on the fast-track Data Retention and Investigatory Powers Bill

See  Briefiing Paper [pdf] from  bigbrotherwatch.org.uk

Update: Bill passed in the House of Commons

16th July 2014. See  article from  telegraph.co.uk

Controversial emergency legislation enabling continued mass snooping has cleared the Commons after an extended sitting and angry exchanges alleging an abuse of Parliament.

56 heroic MPs stood against the massed ranks of three main parties after the front benches agreed on the supposed urgent need for new laws.

The Data Retention and Investigatory Powers Bill was agreed at third reading by an overwhelming majority of 416, after MPs voted 449 to 33 in favour.

Earlier, Labour MP Tom Watson's cross-party bid to force the legislation to expire by the end of the year was defeated 454 vote to 56, majority 398. Watson said:

Parliament has been insulted... (This is) democratic banditry resonant of a rogue state.

Former Tory leadership contender David Davis said:

My understanding is there was an argument inside Government between the two halves of the Coalition and that argument has gone on for three months so what the Coalition cannot decide in three months this House has to decide in one day.

The House of Lords will look at the Bill on Wednesday and Thursday as ministers aim to have it sent for Royal Assent before the end of the week.