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UPDATE UK Judge Kills ISP Initiated Judicial Review of the Digital Economy Act

Posted: 20th Apr, 2011 By: MarkJ
uk internet lawThe Royal Courts of Justice will rule on BT and TalkTalk UK's Judicial Review (JR) of the controversial Digital Economy Act (DEA) today. The Act itself threatens to identify and punish those "suspected" of "illegal" internet copyright infringement (P2P File Sharing) but others fear that it could lead to some innocent broadband customers being unfairly disconnected ("suspended") from their ISP.

The DEA itself was "rushed" through parliament prior to last year's May 2010 General Election, during the "wash-up" process. Many ISPs and consumer groups believe that this resulted in "insufficient scrutiny" of its rules and consequences. Several other ISPs also questioned whether the new laws could damage "basic rights and freedoms" by contravening the EU Privacy and Electronic Communications Directive.
The Five Judicial Review Grounds
• Compliance with Technical Standards Directive (which says there was a need to notify Europe in advance of the legislation);

• Compatibility with privacy directives;

• Compatibility with e-commerce directives;

• Whether the obligations are proportionate;

• Additional issue of potential incompatibility with the Authorisation Directive which is part of EU law governing the regulation of communication providers including ISPs.
The JR itself was won last year by two UK ISPs, BT and the TalkTalk Group, after they successfully argued for their concerns to be heard in a court of law (detailed summary). The judgement will be handed down at 10am this morning by Mr Justice Kenneth Parker in COURT 28.

Much now depends on the detail as to how it will affect the Act itself and any related measures. Certain aspects could be open to delay through required amendments, while others might potentially be thrown out. The Act itself will almost certainly not be scrapped as a result.

The UK government has already gone on record to say that it does not expect the outcome to hold up the DEA's initial provisions (i.e. warning (notification) letters), which will not be introduced until late spring 2012. In addition the court appears to have been quite swift in developing a verdict, which may not be a good sign.

Assuming the verdict goes the government's way then we would expect Ofcom's related/final Code of Practice proposal to surface soon after. Please be aware that, due to vacation, we will not be able to update this article with the outcome until later.

UPDATE 21st April 2011

As feared BT and TalkTalk have lost the majority of their Judicial Review case against the DEA. The Judge dismissed all but one of the five grounds (challenges) to the Act, except for a finding relating to the Draft Costs Order.

Mr Justice Parker found that it was lawful for ISPs to pay 25% of their Relevant Costs and 25% of the Case Fees. However, he ruled that ISPs could not be required by Government to pay 25% of the Qualifying Costs (as such costs amounted to an administrative charge).

The government will now have to amend its cost order but, much as expected, the overall DEA remains largely unimpeded.
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