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Judge Claims UK ISP Judicial Review of Anti-Piracy Law Has Prospect of Success

Posted: 01st Nov, 2011 By: MarkJ
uk internet lawbt retail ukcheapest talktalk uk broadbandThe 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.

Lord Justice Lewison said:

"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."

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.

Lord Justice Lewison explained:

"The judge held that in Article 12 the legislator had struck a careful balance between conflicting interests which led him to conclude that the language of the code should not be stretched beyond its natural meaning for fear of promoting one interest at the expense of another.

The argument advanced this morning is that the liability for information transmitted, referred to in Article 12 of the Directive, should be interpreted as meaning responsibility as a result of the transmission of information. Mr White QC argues that this construction does not stretch the language beyond its natural meaning and is consistent with the policy objectives behind the Directive, including the establishment of a level playing field across all Member States.

In my judgment, those arguments do have a real prospect of success and I grant permission to appeal in relation to Article 12.

So far as Article 15 is concerned, I find the judge's reasons for his preferred construction compelling and convincing, and I do not consider that there is any real prospect of success on that ground. The judge's reasons are, in my judgment, unassailable."

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.
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