From Jaw-Jaw to JR: TalkTalk, BT get judicial review of DigiBill

"Net providers get Digital Economy Act judicial review" is the title of a news item on the BBC website. The story is that ISPs TalkTalk and BT have been granted judicial review of the Digital Economy Act by the High Court (see Ben's post here for background).  The Beeb's take on things runs like this:

A judge will now scrutinise whether the Act is legal and justifiable, and could make wide-ranging recommendations [If I were a judge, that's the last thing I'd do unless I could divorce any suggestions entirely from the realm of legislative policy, which is where most of the controversy lives]. BT and TalkTalk argued that the legislation had been "rushed through parliament" before the election [this is beyond doubt: the Bill was subject to a dramatic wash-up process: see John's post here].

Internet service providers (ISPs) are unhappy with the part of the Act that requires them to take action against suspected illegal file-sharers. Depending on the judge's ruling, the government may be forced to change or even scrap the legislation.

... During the parliamentary debate about the Digital Economy Bill, held in the final days before the parliament was dissolved before May's general election, some MPs [but not very many -- only 6% of the country's elected representatives turned up for it] complained that it needed more debate because of its complex nature.

...  A judge will conduct a full review in February, considering whether the parts of the Act that deal with illegal file-sharing are in breach of the E-Commerce Directive, which rules that ISPs cannot be held liable for traffic on their networks. The Act will also be measured against EU privacy and technical standards legislation.

... Ofcom has been working on a final code of practice [see eg Jeremy's post here] for how the process of monitoring file-sharing will work in the UK. It has the power to slow down the net connections of persistent pirates or even cut them off completely, although such measures would not come into force until at least 2012.

A caveat added at the last minute stipulated that new legislation and several rounds of consultation would be required before such a course of action was taken. A spokeswoman for the regulator said it was "business as usual" as far as the code of practice was concerned.

The regulator is expected to publish its final code later this week ..."

Early responses can be gleaned from Which?, The Guardian, Information Age and The Telegraph

BT and TalkTalk take on the DEA

British ISPs Talk Talk and BT have asked the High Court for a Judicial Review to clarify the legality of the country's recently passed Digital Economy Act, which includes provisions requiring ISPs to police file-sharing and which introduces the much debated ‘Three Strikes’ procedure which ultimately may result in subscribers who indulge in illegal file sharing or other infringing activities having their bandwidth reduced or even their internet connection terminated.

The ISPs say the law was "rushed through" with "insufficient scrutiny” and they are asking the Court to clarify whether the U.K. law conflicts with Europe's e-commerce directive, which limits liability of offences committed by ISP subscribers, giving protection similar to the "safe harbour" provisions of the U.S. Digital Millennium Copyright Act. TalkTalk boss Charlie Dunstone told reporters: "We think the previous government's rushed approach resulted in flawed legislation. That's why we need a judicial review

The two ISPs also believe the provisions of the Act that require ISPs to disconnect repeat file-swappers unfairly target larger ISPs, as they only apply to firms with more than 400,000 subscribers with Andrew Heaney from TalkTalk saying “It means we could have huge swathes of customers moving to smaller ISPs to avoid detection.”

It will be interesting to see if this all ends up with a reference to the European Court of Justice on one more more of the points of law raised. In the 2008 case of Promusicae v Telefonica, the ECJ said that it was up to national courts to perform the balancing act of protecting both copyrights and in this case privacy rights. And here the ECJ was ruling on whether, under European law, there was any obligation on ISPs to reveal the identities of suspected file-sharers.

TalkTalk have been vocal in their opposition to three strikes but BT are newer to the fray: BT's Industry Policy Director Simon Milner said yesterday that "every film downloaded from The Pirate Bay or the dozens of other sites offering unlicensed content is a lost sale for BT Vision", but added that when it came to the wider issue of online copyright protection "this is their [the copyright owners'] business: it's up to them to find a solution to their business problems, it's not principally our problem".

UK Media regulator OfCom is currently consulting key interest groups on how a three-strikes might work under the provisions of the DEA.