ISPs face blow as Judicial Review against DEA is dismissed
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.