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Digital Top Stories
ISPs go to judicial review over DEA
By CMU Editorial | Published on Friday 9 July 2010
BT and TalkTalk yesterday announced they were going to court in a bid to persuade judges to overturn elements of the sometimes controversial Digital Economy Act, in particular those provisions relating to the three-strikes system for combating piracy, on the grounds they contravene various aspects of European Law.
The two net firms will take the in-development anti-piracy system – under which ISPs will be forced to send letters to suspected illegal file-sharers and, ultimately, suspend the net access of those who persist – to judicial review, arguing the new copyright laws fail to follow legal procedures set out in various European directives covering issues like privacy, proportionality, e-commerce and technical standards.
An English court can only overturn the decision of parliament in a handful of circumstances, the main one being when new UK laws conflict with European laws. Generally English judges will look to their counterparts in the European Courts Of Justice for guidance on issues like this.
In the past, the ECJ has been rather non-committal on the role ISPs can and should play in combating piracy, even when their customer’s privacy rights are arguably contravened. In the previously reported 2008 Spanish file-sharing case of Promusicae v Telefonica, the ECJ advised that it was up to national courts to perform the balancing act of protecting both copyrights and privacy rights. In that case the ECJ was ruling on whether, under European law, there was any obligation on ISPs to reveal the identities of suspected file-sharers.
At a legislative level, there have been rumblings around the European Parliament for some time that some sort of directive should be passed specifically banning any anti-piracy system that ultimately results in individuals losing their net connections – more based on the argument that there is now a basic human right to internet access than on privacy grounds – but such rumblings have so far not resulted in actual law.
So, whether there is a case under European law for judges to intervene in the three-strikes bit of the DEA remains to be seen. Very possibly not. Though BT and TalkTalk’s announcement shows that, as far as the ISPs are concerned, the fight against three-strikes is not over, despite parliament passing the Act in April.
BT’s involvement is especially interesting. TalkTalk have been vocal opponents to the DEA from the word go, and have previously threatened legal action to try to block the three-strikes system. BT have been more guarded in their previous responses, partly because they – like ISP rivals Virgin Media and BSkyB – are increasingly playing in the content space themselves, in their case via BT Vision, so do have some vested interest in copyright protection measures.
BT’s Industry Policy Director Simon Milner admitted yesterday that “every film downloaded from The Pirate Bay or the dozens of other sites offering unlicensed content is a lost sale for BT Vision”, but added that when it came to the wider issue of online copyright protection “this is their [the copyright owners’] business: it’s up to them to find a solution to their business problems, it’s not principally our problem”.
TalkTalk boss Charlie Dunstone, always vocal on this issue, gave a simple explanation to the two company’s legal action yesterday, telling reporters: “We think the previous government’s rushed approach resulted in flawed legislation. That’s why we need a judicial review”.
Record label trade body the BPI, who led the record industry’s lobbying efforts with regards the DEA, said the legal challenge to the new law was “disappointed but not surprising”, adding: “[BT and TalkTalk] appear desperate to protect their vast profits at the expense of musicians and creators. We are hopeful that this will not delay the implementation of the Act”.
Media regulator OfCom is currently in charge of that implementation and is consulting all key interest groups on how three-strikes might work. They hope to have draft proposals ready for the Autumn. Whether the judicial review will slow that process down remains to be seen.
