Broadband ISP BT Retail, with support from the TalkTalk Group, has today begun a new appeal against their initially failed request for a Judicial Review (JR) of the controversial Digital Economy Act (DEA). The Act seeks to identify and possibly even disconnect ("suspend") those suspected of "illegal" internet piracy from their ISP, yet the providers claim that significant chunks of it are incompatible with EU law.

The initial challenge came in April 2011 but was largely unsuccessful (here), with judge Mr Justice Parker dismissing all but one of the five grounds (challenges). Early attempts to secure an appeal proved difficult, although the ISPs finally "won permission to appeal" at the Court of Appeal (here) in October 2011 and that is what they are hearing today.

The Five Original DEAct 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.

Crucially the judge who granted BT permission to appeal in October last year, Lord Justice Lewison, took the view that the ISPs now had a "real prospect of success". Lewison also noted that the previous judge had made a number of rulings that conflicted with the position of several European laws and courts, which offered "good reason for the grant of permission" to appeal.

The case (C1/2011/1437) is being heard today in Court 68 (from 10:30am) at the Court of Appeal (Thanks to Dinah Greek for the info.). Lady Justice Arden, Lord Justice Richards and Lord Justice Patten are presiding. They will ultimately be tasked with making a "FINAL DECISION" on whether or not to allow BT's Judicial Review arguments through.

At this stage it's a hard one to call and Lewison's comments, while significant and favourable to the ISPs point of view, are by no means a guarantee that BT's appeal will survive. We will update as soon as the details come in.