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Digital Economy Act goes to judicial review

By | Published on Thursday 11 November 2010

BT and TalkTalk’s bid to take the Digital Economy Act to judicial review took a step forward yesterday when High Court judge Gary ‘The Guy’ Hickinbottom – no, I’m not going to start that – when Mr Justice Hickinbottom ruled that the two internet service providers had at least three sufficiently strong arguments as to why the controversial legislation should indeed be reviewed.

The net firms announced that they would take the DEA to judicial review back in July on the basis the new act, and in particular its copyright provisions, contravened various bits of European law, a fact parliamentarians had failed to consider – they argued – because of the way the last government rushed the legislation through the houses of Lords and Commons in a bid to ensure the bill became law before the General Election.

Hickinbottom said yesterday that the ISPs’ claims that the DEA does not comply with European privacy laws or e-commerce rules, and that the Labour government failed to give the European Commission sufficient time to scrutinise the bill, are all worthy of consideration in court. He’s still to say whether he’ll let BT and TalkTalk’s final claim, that the DEA infringes European free movement and human rights laws, be discussed.

Many key players in the internet service provider sector, most notably TalkTalk, have long let it be known they have no interest in getting involved in policing copyright infringement online. The DEA, of course, will force net firms to send warning letters to any of their customers who are believed by the content industries to be illegally file-sharing, and to then suspend the net access of those users who fail to heed the warnings.

As a general rule, under the British constitution parliament can do pretty much whatever it likes, but the courts may review its legislation in certain circumstances, mainly to do with conflicts between new laws and existing human rights legislation or commitments to the European Union.

Hickinbottom will most likely look to the European courts for guidance when the DEA goes before judicial review, probably next February. Though previously the European courts have been keen to leave it to national legislators and courts to navigate the tricky task of balancing the IP rights of content owners with the privacy rights of the world at large. Attempts in European circles to pass new legislation that specially forbids three-strikes style anti-piracy systems have been unsuccessful.

Although the DEA was a creation of the last Labour government, the new ConDem coalition continues to back the new law, with the government’s Department For Business, Innovation And Skills telling The Guardian yesterday: “The government believes the Digital Economy Act is consistent with EU legislation and contains sufficient safeguards to protect the rights of consumers and internet service providers. The Digital Economy Act sets out to protect our creative economy from the threat of online copyright infringement, which industry estimates costs them £400m a year”.

Prior the General Election, Lib Dem chief and current Deputy Prime Minister Nicky ‘U-turn’ Clegg said the DEA “badly needs to be repealed and the issues revisited”, adding that a Lib Dem government would “take it off the statute book and replace with something better”. All of which obviously means he now thinks the DEA is fantastic, and probably the greatest bit of legislation he’s ever seen.

Needless to say, TalkTalk welcomed the news that its call for a judicial review of the DEA had been answered positively. The company’s regulation man Andrew Heaney told reporters: “The provisions to try to reduce illegal file-sharing are unfair, won’t work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded. [This review] will properly assess whether the act is legal and justifiable, ensuring all parties have certainty on the law before proceeding”.

On the other side of the equation, a spokesman for record label trade body the BPI, who lobbied hardest for the three-strikes provisions to be included in the DEA, told CMU: “Rightsholders, ISPs and government all agree that urgent action is needed to tackle online copyright infringement. Parliament enacted the Digital Economy Act to encourage innovation on the internet and to protect jobs in the creative industries, which are a key area of growth for the economy. It’s disappointing that a couple of ISPs are trying to frustrate this and resist any action being taken to reduce illegal file-sharing on their networks”.

He continued: “All that the court has done today is to allow BT and Talk Talk’s legal challenge to go to a full hearing. We continue to believe that their case is misconceived and will fail. The Act remains in full force and we will continue to work with government, Ofcom and other stakeholders to implement it”.

OfCom is believed to be close to finishing its report on how the three-strikes system enabled by the DEA should actually operate, a first draft of which was published earlier this year. It was originally thought that warning letters could start to be sent out as early as next January, though most now reckon that process will be held off until after the judicial review in February, further delaying the launch of three-strikes in the UK.

In sort of related news, parliament’s Culture, Media & Sport Select Committee has announced it will review issues surrounding the protection of intellectual property rights online, including the new anti-piracy system put in place by the DEA. The Committee has invited written submissions on the issue from interested parties, which should be sent to chair John Whittingdale by 5 Jan.