The judge who last month granted two broadband ISPs, BT and TalkTalk UK, permission to appeal (here) against an earlier ruling that rejected (here) their attempts to win a Judicial Review (JR) of the controversial Digital Economy Act (DEA) has said that the internet providers now have a "real prospect of success".

The Act seeks to identify and possibly even disconnect ("suspend") those suspected of "illegal" internet copyright infringement (piracy) from their broadband access. The ISPs claim that it also fails to comply with several EU laws regarding privacy and threatens the role of internet providers as "mere conduits" of information.

Out-Law, an online legal information service, notes that the full text of the October 2011 appeal hearing has now been published and appears to offer a surprising amount of support for the aforementioned ISPs.


Justice Lewison goes on to note that the previous judge appeared to have made a number of rulings that conflicted with the position of several European laws and courts, which provided "good reason for the grant of permission" to appeal.

In fact Justice Lewison granted permission to appeal against almost all grounds except for part of the second ground, which claimed that the contested provisions infringe Articles 12 and 15 of the E-Commerce Directive. The directive itself provides that ISPs cannot be held liable for data going though their networks.


The appeal hearing is now set to go ahead in February 2012 and if successful it could result in the DEAct being either set aside (quashed) or, more likely, force a number of mandatory orders requiring significant changes. In any eventuality the ruling threatens the government's act with further delays.