According to details just released, a Judge has said that two ISPs have a “real prospect of success” in their challenge of the UK’s Digital Economy Act.
Last month via the Court of Appeal, BT and TalkTalk obtained permission to appeal a High Court judicial review of the legislation.
According to an OutLaw.com summary, Lord Justice Lewison agreed to allow the ISPs to argue that the Act “was enacted without following proper procedures and that it may breach the EU’s E-Commerce Directive, Privacy and Electronic Communications Directive, Data Protection Directive, Authorisation Directive.”
Under EU law, as long as certain conditions are met Internet service providers are not liable for the data carried over their networks, a situation known as the “mere conduit” defense.
BT and TalkTalk say that provisions of the DEA that make them liable for infringements carried out by their file-sharing subscribers violates that defense as written in the E-Commerce Directive.
“In my judgment there is a sufficient prospect of success in these arguments to attract the adjective ‘real’ and I grant permission to appeal on that ground,” wrote the Judge.