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By: MarkJ - 7 October, 2011 (1:17 PM)
uk internet lawinternet piracyThe Open Rights Group (ORG) just confirmed that UK ISPs BT and TalkTalk have officially "won permission to appeal" at the Court of Appeal this morning against their largely failed Judicial Review (JR) of the controversial 2010 Digital Economy Act (DEA).

The Act seeks to identify and possibly even disconnect ("suspend") those suspected of "illegal" internet copyright infringement (piracy) from their broadband access. An initial appeal attempt was rejected earlier this summer but it was not an outright rejection and the broadband ISPs were in fact granted a crucial hearing, which went ahead today.

Mike O’Connor, CEO of Consumer Focus, said:

"The Court's decision to give permission to an appeal is welcome and we look forward to the next stage of the process. The Digital Economy Act has not had enough scrutiny even though it has major implications for consumers, businesses, libraries and wi-fi providers.

Our concern is that Digital Economy Act takes a hard-line enforcement approach and could lead to entire households being disconnected from the internet based on accusations by copyright owners. Copyright infringement is a problem but we need more innovation and competition to encourage consumers to use legal online music and film services.

In the light of the ongoing judicial process, Government should reconsider whether implementation of the Act is the best way to tackle online copyright infringement."

Both BT and TalkTalk claim that the DEA does not comply with various EU laws, although their efforts to win the first judicial review were dealt an almost fatal blow when, in April 2011, Mr Justice Parker at the Royal Courts of Justice rejected (here) most of the grounds (except for the Draft Costs Order).
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.
It remains to be seen whether either BT and or TalkTalk will continue with the process, especially with both either directly or indirectly seeking public funds from the UK government to help build a new generation of superfast fibre optic based broadband networks. Meanwhile we're still waiting to see Ofcom's final and related code of conduct, much as we have been all year.

UPDATE 10th October 2011

The appeal hearing looks set to go ahead in February 2012.
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