UK ISPs Ask for Judicial Review of Digital Economy Act

TalkTalk and BT have asked the High Court to look at whether the controversial Act was passed into law without going through the correct parliamentary procedures, and that some of the measures proposed to try to prevent illegal file-sharing could “harm the basic rights and freedoms of citizens.”

UK ISPs TalkTalk and BT have asked the country’s high court to determine the legality of the controversial Digital Economy Act before it is fully implemented.

They believe the Act was passed into law without going through the correct parliamentary procedures, that it was rushed through Parliament in the ”wash up” period, and that this haste meant it became law without being properly scrutinized and without its impact being properly assessed.

As I mentioned after the Act’s passage, a process that would’ve normally taken several weeks or even months of legislative scrutiny was squeezed into a two-hour Commons debate where only 39 of 646 MPs took part (5%). Largely ignored were the more than 20,000 people who wrote their MPs voicing their opposition to the DEB and demanding “proper consideration” of the bill’s effects.

“In addition to having these procedural concerns, we believe the measures proposed to try to prevent illegal file-sharing could harm the basic rights and freedoms of citizens,” says Charles Dunstone, Chairman of the TalkTalk Group.

“In particular, we are concerned that obligations imposed by the Act may not be compatible with important European rules that are designed to ensure that national laws protect users’ privacy, restrict the role of ISPs in policing the internet and maintain a single market.”

Of particular concern to the two is that the Act may conflict with the EU’s e-commerce directive which states that ISPs are “mere conduits” of content and should not be held responsible “for all types of illegal activities initiated by third parties.”

However, the Directive does state that it “does not affect the possibility of a national court or administrative authority to require a service provider to terminate or prevent an infringement.” This could be interpreted as allowing for user disconnection in order to achieve that end.

The Open Rights Group, the UK’s leading voice defending freedom of expression, privacy, innovation, consumer rights and creativity on the internet, has applauded the move, sharing the ISPs’ view that the Act should not have been “rammed through” in the final days of Parliament.

“The government at the time ignored the fact that EU legislation requires that the Commission be given three months to ensure that ‘technical’ legislation complies with relevant EU laws,” it says. “This includes data protection, privacy and e-commerce legislation. It will be very interesting to see the details of their case.”

It’s not clear what the High Court will decide, but at least some are choosing to fight back against what is obviously flawed legislation that does little to force copyright holders like the music industry to give consumers what they want, where they want it, and at a price they can afford. All the Act does is force people to become customers of an industry that has always cared very little about their concerns.

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