Digital Legal Top Stories

BT and TalkTalk review options after appeal court ruling on DEA

By | Published on Wednesday 7 March 2012

BT & TalkTalk

BT and TalkTalk both said yesterday that they were “reviewing their options” after the Court Of Appeal rejected their claims that the copyright section of the 2010 Digital Economy Act conflicts with various bits of European law. It was the net firms’ second go at trying to force a rethink of the controversial legislation, pushed through by the previous Labour government but in theory also supported by the current coalition. Many now expect the two ISPs to have one more go by taking the matter to the Supreme Court.

As much previously reported, the disputed section of the DEA introduces a three-strikes system for combating illegal file-sharing into UK law, whereby ISPs are forced to send warning letters to suspected file-sharers with the threat of some as yet to be determined penalty if warnings are ignored. Despite being passed in 2010, the so called graduate response system is yet to go live, much to the annoyance of those in the content industries who lobbied so hard for it.

The attempt by BT and TalkTalk to overturn the legislation through judicial review hasn’t helped. Responding to yesterday’s ruling, the second basically rejecting the firm’s arguments, a spokesman for TalkTalk told reporters: “We’re disappointed that our appeal was unsuccessful though we welcome the additional legal clarity that has been provided for all parties. Though we have lost this appeal, we will continue fighting to defend our customers’ rights against this ill-judged legislation”.

A spokesman for BT said something similar, telling reporters: “We have been seeking clarification from the courts that the DEA is consistent with European law, and legally robust in the UK, so that everyone can be confident in how it is implemented. Now that the court has made its decision, we will look at the judgment carefully to understand its implications and consider our next steps”.

Those campaigning groups that have supported the net firms on this one were more openly critical of the appeal court’s ruling.

Peter Bradwell of the Open Rights Group said in a statement: “There is one thing the court cannot tell us: that this is a good law. The Department For Culture, Media And Sport had no evidence when they wrote this Act, except for the numbers they were given by a couple of industry trade bodies. This is a policy made on hearsay and assumptions, not proper facts or analysis. So significant problems remain. Publicly available wi-fi will be put at risk. Weak evidence could be used to penalise people accused of copyright infringement. And people will have to pay £20 for the privilege of defending themselves against these accusations. The government needs to correct these errors with a proper, evidence-based review of the law”.

Meanwhile Loz Kaye from the UK branch of The Pirate Party said: “This decision brings the draconian Digital Economy Act another step closer. The coalition government must be clear now once and for all on whether it supports this anti-internet piece of legislation. No one has proved that the Act will help the creative industries financially, that is just lobbyists’ spin. A recent study on a similar system in France suggests that there is no benefit for music sales. Threats to chuck entire households off the web will be bad for the economy, bad for society – and for us as a creative nation too”.

Those who oppose the three-strikes provisions in the DEA (not to mention the possible framework for a web-blocking system against infringing websites, similar to that proposed in the US under the controversial SOPA, which is pencilled into the UK act for future consideration) will hope that recent protests against the global intellectual property treaty ACTA and the spilling over of US protests against SOPA into Europe might fuel renewed lobbying efforts to persuade government to alter the DEA’s anti-piracy strategy before its even implemented.

Though the government has continued to stick up for ACTA despite mounting pressure, and seems basically committed to the DEA still. And those against the legislation won’t find supporters on the opposition benches in parliament either, Labour recently renewing its support for the Act it rushed onto the statute book. Nevertheless, it still remains uncertain if and when three-strikes will actually go live in the UK.

As previously reported, numerous trade bodies representing different content industries supported the appeal court’s ruling on the BT and TalkTalk action yesterday, with the boss of record label trade body the BPI, Geoff Taylor, summing up the sentiment of his and other trade body organisations when he said: “The courts have confirmed, once again, that the Digital Economy Act is legal, proportionate and fair and can now be implemented. The ISPs’ failed legal challenge has meant another year of harm to British musicians and creators from illegal file-sharing. The ISPs now need to work constructively with government and rightsholders to implement the Act”.