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ISPs face blow as Judicial Review against DEA is dismissed
Wednesday 20 April 2011 12:46:15 by John Hunt

The Judicial Review examining the Digital Economy Act (DEA) has been dismissed on four counts being protested by BT and TalkTalk with a fifth being partially granted. The two companies were protesting the act on initially four grounds with a fifth being added a month ago. These were:

  • Breach of the Technical Standards Directive by failing to notify the European Commission
  • Breach of the e-Commerce Directive which states that ISPs cannot be held liable for data going through their networks
  • Breach of the Data Protection Directive and Privacy and Electronic Communications Directive as ISPs would have to handle data that is not specifically permitted
  • The measures proposed intended a disproportionate restriction on users, in-particular the three-strikes disconnection scheme
  • The ISPs objected to the parliamentary costs order requiring the payment of 25% of the scheme

Mr Justice Kenneth Parker ruled that the first four of these claims were not upheld but ruled partially in favour of ISPs over the cost-sharing agreement. This was deemed unlawful and that the government cannot force ISPs to pay 25% of the costs of the government in implementing the DEA provisions.

Both BT and TalkTalk were quick to comment on the judgement stating their disappointment.

"We're disappointed that we were unsuccessful on most of the Judicial Review. On the question of the proportionality of the Act, we're pleased the judge identified issues but disappointed that he felt that the evidence of the futility of the measures imposed by the Act, and the cost and harm they will cause, is not sufficiently definitive enough at this stage to uphold our claim. We are reviewing this long and complex judgement and considering our options, which may include an appeal to the Court of Appeal, or a request that the Court of Appeal make a reference to European Court of Justice. Though we may have lost this particular battle, we will continue fighting to defend our customers' rights against this ill-judged legislation."

TalkTalk Statement

"We are disappointed with the outcome of the Judicial Review. We are reviewing this long and complex judgement. Protecting our customers is our number one priority and we will consider our options once we have fully understood the implications for our customers and businesses.

This was always about seeking clarity on certain points of law and we have to consider whether this judgment achieves these aims."

BT Statement

Those backing the proposals set down in the act were equally keen to state their backing for the decision, and encourage ISPs to comply with the legal decision.

"This judgment gives the green light for action to tackle illegal downloading in the UK. It confirms that the DEA is proportionate and consistent with European law. Shareholders and customers of BT and TalkTalk might ask why so much time and money has been spent challenging an act of parliament to help reduce the illegal traffic on their networks. It is now time for BT and TalkTalk to work constructively with government and with rights holders to implement the Digital Economy Act.”

Geoff Taylor, (Chief Executive) BPI

This is a blow for the ISP industry. ISPs will not be liable for any costs of setting up the scheme (Ofcom's costs) but will be for running the appeals process and will still have to pay 25% towards the cost of letter writing which is used to notify users that they have breached the three-strikes policy. Click for the full High Court decision.

Comments

Posted by otester over 6 years ago
Their points were weak anyways, as long as you have a VPN you shouldn't have a problem.
Posted by herdwick over 6 years ago
265 paragraphs of judgment to read !

Legal challenges to new primary legislation don't have a good track record, which is perhaps as well if we think Parliament is the place to make laws.
Posted by Northwind over 6 years ago
The list of interested parties listed in the decision is a useful list of organisations whose associated products I shall continue to avoid:

BPI (BRITISH RECORDED MUSIC INDUSTRY) LIMITED, BRITISH VIDEO ASSOCIATION LIMITED, BROADCASTING ENTERTAINMENT CINEMATOGRAPH AND THEATRE UNION, EQUITY, FILM DISTRIBUTORS' ASSOCIATION LIMITED, FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, MOTION PICTURE ASSOCIATION INC, THE MUSICIANS' UNION, PRODUCERS ALLIANCE FOR CINEMA AND TELEVISION LIMITED, UNITE

Quite obviously they consider me to be their enemy, so I shall have nothing further to do with them.
Posted by tommy45 over 6 years ago
They haven't thought it through, i can only imagine where all this 3 strikes nonsense will lead, those who end up being disconnected will mean loss of revenue for the isp.and costs, which in turn will be passed on to the rest of customers, so how can this be any good for business? another waist of tax payers money pushing this seriously flawed piece of legislation by government
Posted by chrysalis over 6 years ago
forget uk courts, go to a court with a clue the EU court.
Posted by vm1990 over 6 years ago
get rid of the goverment im voting greenparty next time atleast there not a bunch of spoilt rich a**holes

we are getting to the point where its going to be big brother i hated the show and ill be damed if im going to let the goverment control me.

if they had any brains at all they would know every step they take to stop stuff makes it 10 times harder to stop it in the future

DIG YOUR HOLE GOVERMENT DIG IT NICE AND DEEP
Posted by otester over 6 years ago
@vm1990

Yeah a great replacement...ecofacists...

Try UKIP/Libertarian/Pirate Party if you're into freedom.
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