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ISPs win right to challenge Digital Economy Act judicial review ruling

BT and TalkTalk have been granted permission to appeal a High Court ruling on the legality of the UK's Digital Economy Act (DEA).10 Oct 2011

In a judicial review ruling in April the High Court rejected claims by the internet service providers (ISPs) that the DEA violated EU laws on privacy and electronic communications.  The EU's Privacy and Electronic Communications Directive governs what information can be gathered from electronic communications and says that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.

 In June the ISPs failed in their bid to have an appeal heard to overturn that decision, but have now won that right. Both companies said they were "pleased" to have the chance to re-argue their case.

"We are pleased to have been granted permission to appeal the High Court judgment," a BT spokesperson told Out-Law.com.

"We now expect that the hearing will take place as soon as possible," the spokesperson said.

"We are pleased to have been granted permission to appeal the High Court judgment," TalkTalk said in a statement.

The Government said that the impending court hearing will not delay its efforts to enact new anti-piracy measures under the DEA.

“We are confident the original judgement will be upheld and will continue with our plans for implementing the mass notification system in the Digital Economy Act,” a DCMS statement said.

Under the DEA Ofcom, the UK's communications regulator, must draw up new regulations on internet service providers' (ISPs) involvement in attempts to stop copyright infringement.

In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.

Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers.

Under the draft code, ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.

A spokesperson for Ofcom told Out-Law.com that it is waiting for instructions from the Government to publish its finalised code. DCMS has previously said that the code will be published shortly.

Under sections 17 and 18 of the DEA other anti-piracy measures can be drawn up at the behest of the Culture Secretary. Those measures would see courts decide whether to force ISPs to block access to pirated copyright works. In August the Government announced that it had no plans to bring any new regulations under sections 17 and 18 into law "at this time".

The DEA has been controversial, with rights holder groups across the creative industry expressing frustration that the new anti-piracy measures allowed for under the DEA have yet to be enacted. Opponents of the Act have challenged the legality of the measures and say the law was rushed through Parliament without proper debate when it was passed in the 'wash up' period prior to the 2010 general election.

Jim Killock, executive director of the Open Rights Group (ORG), which lobbies to protect public freedom, told Out-Law.com that he believes the legality of the DEA may eventually have to be determined by the European Courts of Justice (ECJ).

"There is a need to get full clarity and it is in everybody's interests to see if any of this needs to be clarified by Europe," Killock said.