Today was the first day of the judicial review of the Digital Economy Act 2010, which passed into law in the final days of the Labour Government. The review has been brought by BT and TalkTalk, two of the UK's largest ISPs.
Further interventions have been made by the Open Rights Group, Consumer Focus and Article 19. Rightsholders including the BPI have intervened in support of the Government. The first day saw Anthony White QC presenting his submissions on behalf of the claimants.
BT and Talktalk claim that the DEA introduces 'technical regulations' for the purposes of the Technical Standards Directive, and as such the EU Commission should have been notified of the Bill when it was in its drafting stages. Without notification these regulations are unenforceable.
The issue of whether the new obligations and standards are contained in the act itself or in the initial obligations code was examined. Mr White suggested the latter. There is no exact precedent - the Judge acknowledged that this case fell into a grey area, somewhere between a 'pure enabling measure' and a set of complete technical standards that is notifiable.
The E-Commerce Directive 2000/31 and the mere conduit principle were raised, and it was asserted that a purposive approach should be taken- ISPs as mere conduits should be free from financial liability as well as legal liability.
The directive also prohibits general monitoring obligations. Under the provisions of the DEA ISPs will have to maintain a database of would-be infringers. Whether this amounts to 'general' or 'specific' monitoring is crucial.
The Court heard the concerns of the European Data Protection Supervisor Peter Hustinx, who has claimed that the data processing procedures involved in a 'graduated response' model of countering infringement involved 'highly invasive activities' that were likely to affect millions of innocent internet users.
It was also claimed that the Act is in contravention of the Privacy and Electronic Communications Directive. Here the definition of 'personal data' was examined. It was asserted that IP addresses will necessarily be linked to subscribers, making IP addresses personal data.
As pointed out in the evidence submitted by the Open Rights Group, this information may also expose sensitive information about individual subscribers including religion or sexual preference.
The proportionality of the measures of the DEA will be examined tomorrow before submissions are made on behalf of the Government.
Jag Bahra / Eugenio Quintieri