ISPs Challenge to Digital Economy Act Rejected

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Following complaints from two of the country's largest ISPs, last month the High Court began its judicial review of the Digital Economy Act, the legislation put in place in the UK to deal with illicit file-sharing. Today the High Court almost completely rejected the challenge by BT and TalkTalk, with the ISPs winning only a slight concession on costs.

Last month the High Court began a judicial review of the controversial Digital Economy Act (DEA). The review was ordered after the legislation, which was rushed through by the previous Labour government, was met with complaints from two of the UK’s biggest Internet service providers, BT and TalkTalk.

Both ISPs accused the former government of pushing through the legislation without due process and questioned whether the Act is enforceable under current EU legislation. They also challenged the statutory order, currently in draft, designed to apportion the costs of meeting the requirements of the DEA.

Under the law, service providers are required to take action against subscribers flagged as illicit file-sharers and could be required to block domains associated with infringement.

Just under an hour ago, that decision arrived.

“The High Court today ruled in favour of the Government in a judicial review of measures to tackle online copyright infringement in the Digital Economy Act,” said the Department for Culture, Media and Sport (DCMS) in an announcement.

“Mr Justice Kenneth Parker upheld the principle of taking measures to tackle the unlawful downloading of music, films, books and other copyright material. BT and TalkTalk had brought the judicial review, claiming that the measures in the Act were not compliant with EU law and were not proportionate. The judge rejected the challenge.”

On the statutory order dealing with the costs of implementing the DEA, the government indicated that the ISPs could avoid some, but not all costs.

“The judicial review also considered the statutory instrument that splits the cost of the Act’s mass notification system between rights holders and internet service providers.

“The judge ruled ISPs could be made to pay a share of the cost of operating the system and the appeals process but not Ofcom’s costs from setting up, monitoring and enforcing it. The Government will now consider changes to the statutory instrument.”

In a statement responding to the judgement, a DCMS spokesperson said the government is pleased that the court has decided in favor of the DEA.

“We are pleased that the Court has recognised these measures as both lawful and proportionate. The Government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly.”

Both BT and TalkTalk say they are “disappointed” with the outcome and are considering their options. They could include going to the Court of Appeal and the European Court of Justice.

Regulatory body OFCOM is currently considering if site blocking under the DEA is a workable practice. They will report to government shortly.


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