The controversial Digital Economy Act (DEA) is to face scrutiny over whether it is legal and justifiable
TalkTalk and BT launched their legal challenge to the DEA back in July, and now the High Court has granted these two ISPs a judicial review after upholding several of their complaints. Both BT and TalkTalk complained that the Act had been rushed through Parliament in the closing days of the previous Labour government. They said that because of this, it had received “insufficient scrutiny”.
They also complained to the court about the practice of sending alleged copyright infringers warning letters, and possibly even suspending their broadband connection, in an effort to reduce illegal file-sharing and Internet piracy.
Three-Strikes And Out
The Act includes provisions allowing the Internet connection of users to be suspended if they are found to be persistently downloading copyrighted content. But a last minute amendment to the Act required additional legislation to be passed before terminations can be carried out.
The Internet cut-off plans would only apply to large ISPs with more than 400,000 users – which includes BT and TalkTalk. Under the rules, the ISPs would be forced to track the activity of known copyright infringers and pass those details onto to copyright owners so they could pursue suspensions through the courts.
Both BT and TalkTalk have said that these plans are incompatible with European rules that govern the extent to which ISPs are responsible for “policing” online activity. They also said it could breach the privacy of their customers.
Meanwhile the European Parliament in September called for a wide ranging EU copyright law. This was despite the European Commission saying previously that illegal file-sharing is the only option for some people.
High Court Decision
So it is now up to the High Court to decide on whether the DEA conflicts with existing European Union legislation.
TalkTalk and BT are two of the UK’s largest ISPs, a sector that has consistently expressed its opposition to the DEA. The operators say the Act’s measures to curb online copyright infringement did not receive sufficient scrutiny when the bill was passing through Parliament. The Digital Economy Act was passed into law in April after it received Royal Assent from the Queen.
Both BT and TalkTalk have now welcomed the High Court’s ruling.
“We are pleased that the Court has recognised that our concerns about the copyright infringement provisions in the Digital Economy Act should be considered in a full hearing,” said BT in a statement emailed to eWEEK Europe UK. “It is important for everyone involved – copyright owners, consumers, ISPs and institutions like libraries and universities – to have certainty on the law before proceeding.”
This sentiment was echoed by TalkTalk, who said that the Act was rushed through Parliament and was unfair.
“We are very pleased that the Court has recognised that our concerns about the copyright infringement provisions in the Digital Economy Act should be considered in a full hearing,” said Andrew Heaney, Executive Director, Strategy and Regulation at TalkTalk, in an emailed statement to eWEEK Europe UK.
“The Act was rushed through Parliament in the ‘wash-up’ with only 6 percent of MPs attending the brief debate and has very serious flaws,” said Heaney. “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. We look forward to the hearing to properly assess whether the Act is legal and justifiable and so ensure that all parties have certainty on the law before proceeding.”
And the judicial review was also welcomed by another long term DEA opponent, namely the Open Rights Group. In March it had organised a demonstration outside Parliament to protest against the Digital Economy Bill, and then said in July that Ofcom’s draft code for the Digital Economy Act was unlawful.
“We are extremely glad that judges will be taking a look at the Digital Economy Act, which we believe breaches people’s rights to freedom of expression and privacy,” said Jim Killock, executive Director of the Open Rights Group. “The Act is a mess and badly needs repealing. Judicial Review may give the government the chance to drop this heavy-handed approach to copyright enforcement.”
Whatever the rights and wrongs of the act, it is clear that some people will not pay for any online content. Indeed, back in July four out of five web users in the UK admitted that they would go elsewhere if their favourite site began to charge for content, according to a KPMG study.