Digital Economy Act: The ISPs Strike Back!

I blogged last April about the Digital Economy Act (“the Act”), describing how it appeared to have been drafted without consideration or understanding of how the internet actually works, and how it also passed too much of the “pain” of online copyright infringement onto Internet Service Providers (“ISPs”).

Unsurprisingly, two of the UK’s biggest ISPs, BT and Talk Talk, complained vigorously about the Act from the outset, and last November they successfully sought permission for judicial review of the parts of the Act relating to online infringement of copyright. (Judicial Review is a procedure by which the courts supervise the exercise of public power. A person or organisation that feels that an exercise of such power by a government authority is unlawful may apply to the Administrative Court (a division of the High Court) for review of the decision and have it set aside.)

R. (on the application of British Telecommunications Plc) v Secretary of State for Business Innovation and Skills, took place at the end of last month. The ruling is not expected for at least another month, but various online accounts of the arguments presented by both the ISPs and the government have been written by interested parties who attended the Judicial Review in person.

It seems that the ISPs maintained their position that the Act conflicts with various aspects of European Union Law (including data protection laws).

The ISPs also struck at one of the government’s main justifications for the Act – that it is currently not possible to identify copyright online infringers. The ISPs argued that this justification was “illusory”, because using Norwich Pharmacal orders (and their Scottish equivalent) a rights holder can already force an ISP to identify who an IP address was assigned to. (This assertion is more or less correct.)

In defence the government lawyers apparently trotted out the hoary old warning about the perils of the judiciary meddling with primary legislation of Parliament, and rather more amazingly, the government also supposedly argued that because the Act does not yet have any legal effect on individuals or ISPs, there is little point in reviewing it right now. This is quite breathtaking – akin to saying “let’s not argue about whether I should turn this wheel until after we have crashed into that wall”!

The government’s response to the argument that tech savvy infringers could still avoid detection was to claim that only 0.2% of those using systems for sharing copyrighted material without permission were anonymising their IP address. If substantiated that is an interesting statistic – but I suspect that the Judge will be reluctant to invest too much faith in it, given that he earlier decried “howling” inaccuracies in some other government’s produced stats.

The net result of the Judicial Review, and other administrative and legal blocks on the Act, mean that it apparently won’t come into force until 2012 – if at all. Watch this space!

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