UK ISPs Win Judicial Review of Digital Economy Act

TalkTalk and BT had asked High Court to look at whether it was passed into law without going through correct parliamentary procedures, and whether some of proposed measures fight illegal file-sharing could “harm the basic rights and freedoms of citizens.” Mr Justice Wyn Williams has granted their request.

After nearly four months of waiting UK ISPs TalkTalk and BT have announced that Mr Justice Wyn Williams has granted their request for a judicial review of the controversial Digital Economy Act.

The pair had asked the High Court to look at whether the Act was passed into law without going through the correct parliamentary procedures, and whether or not some of the measures proposed to try to prevent illegal file-sharing could “harm the basic rights and freedoms of citizens.”

“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,” said Charles Dunstone, Chairman of the TalkTalk Group, this past July after calling for the review.

He thinks 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.”

The Digital Economy Act allows the govt to order ISPs to sanction customers with bandwidth throttling, site blocking, account suspension, or other limits of its choosing in order to fight illegal file-sharing.

Also, and probably the worst part, is that it bans public access Wi-Fi so that libraries, universities, local pubs, cafes, churches, community halls, etc. don’t become loopholes for copyright infringement in the “three-strikes” age as proposed by the Digital Economy Bill.

Andrew Heaney, director of strategy and regulation at TalkTalk, says that the measures “won’t work in reducing illegal file-sharing (they only tackle peer-to-peer file-sharing and people will switch to other undetectable measures), will be hugely expensive (the previous government underestimated many of the costs) and most of all will be grossly unfair (mainly since the subscriber of a connection is effectively held responsible for the activities of other users of their connection and if they want to challenge rightsholders claims the subscriber will be presumed guilty unless they can prove themselves innocent).”

TalkTalk and BT have also been concerned about the way the legislation was hurried along without going through the correct parliamentary procedures. By being rushed through Parliament in the so-called ”wash up” period they feel it wasn’t properly scrutinized, and it’s impact not properly assessed.

“Back at the start of 2010, as the Digital Economy Bill was being rushed into law, we were appalled by the ability of big music and film companies to influence government and by the absence of any proper debate or scrutiny by MPs,” adds Heaney. “Only 6% of MPs turned up for the very brief debate on the bill in its final stages and the other important Parliamentary processes were bypassed in the ‘wash-up process’ (the period just before a general election when any outstanding uncontentious bills are quickly passed into law).”

The Act stipulates that Ofcom must have a code of practice in place delineating how ISPs will be forced to comply within 8 months from the time of Royal Assent, the Queen’s formal approval of the legislation, giving the court several months worth of leeway before it’s too late.

TalkTalk says it’s not trying to prevent the govt from fighting illegal file-sharing. It just wants the govt to make make sure it’s “done in a fair and legal way that properly respects consumers’ interests.”

With the High Court now scheduled to look at the Act let’s hope UK consumers see a renewed balance between the rights of consumers and the copyright holders.

Stay tuned.

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