The Digital Economy Act – a technical point

As BT and TalkTalk Broadband prepare for the judicial review of the Digital Economy Act, the Act itself continues quietly to prepare itself for life post-JR. The statutory instrument that apportions costs for the Initial Obligations (right owners pay 75% and ISPs the rest) has now been laid before Parliament. The cost split needs to be approved for inclusion in the Code for Initial Obligations, which has a completion deadline, I think, of 8 March.

The consultation over costs took place in Spring last year and the Government published a draft SI in the autumn, which then disappeared for three months. The Government had decided the SI had better be notified to the European Commission under the Technical Standards Directive separately from the Code. The Directive requires Member States to send the Commission ‘draft technical regulation’ (including requirements relating to the provision of electronic services) in case it presents barriers to trade.

Compliance with the Directive is one of the key grounds for JR – the ISPs say the Government should have notified the Digibill itself to the Commission (JR grounds here). Is the Government’s notification too little, too late?

I wonder what readers think? The Technical Standards Directive doesn’t apply to rules relating to matters covered by EU telecoms legislation – Art 1(5). Doesn’t telecoms law cover the DEA’s areas? The Authorization Directive allows governments to impose conditions on ISPs in accordance with the E-Commerce Directive (Art 15 covers requiring service providers to inform about illegal activities) and the Framework Directive covers measures restricting end users’ access to the internet.