Day two of the Judicial Review consisted mostly of Mr White QC presenting submissions for the Claimants on the ground of proportionality.
The Judge acknowledged that copyright, being a property right, must be balanced carefully with the fundamental rights of those the act would affect.
Mr White QC first pointed out that Parliament seemed to be under the impression that without the new DEA measures, repeat infringers could not be specifically targeted. He claimed that this is in fact untrue as the current regime (using Norwich Pharmacal Orders) was perfectly capable of flagging up repeat infingers- asserting that the identified need for legislative intervention was in fact 'illusory'. If the objective can be achieved without the legislation, is there any need for the legislation at all?
The Government's statistics were then brought into question. The Court heard that, using the Government's own statistics Andrew Heaney of TalkTalk had deduced that P2P filesharing accounts for less than 40% of all online infringements. Relying on this, and the relative ease with which P2P can be side-stepped completely with other technologies led Mr White QC to assert that the Government are simply 'hoping' that the anti-piracy measures of the DEA will have any substantial affect on infringement. This, he claimed, was not acceptable when the fundamental rights of so many are in the firing line.
The judge commented on consumer behaviour, stating that evidence shows that people are not driven by economic incentives alone, and that until new measures are tested it is difficult to speculate as to how infringers will respond. Mr White QC dismissed the Government's hope that 70% of people will necessarily stop infringing under the new regime as 'naïve and optimistic'.
The potential for a 'chilling effect' on home subscribers and operators of open/public networks was examined. The court heard the concerns raised by the Open Rights Group that the new measures would effectively require network owners to supervise their customers' internet usage. The Defence raise no competing evidence that contradicts this point nor respond to it at all. Mr White inferred from this that the Government had simply not taken into account the potential for any chilling effect.
The cost-benefit analysis was addressed in detail. It was asserted that such analysis must be focused on the potential to restored benefits, and the evidence on this point so far has been inconclusive. The Claimants claim that the Government has relied on a number of assumptions that are somewhat unreliable. In particular those of displaced sales (that a 40% reduction in filesharing will amount to a 40% reduction in lost revenue) and the effectiveness of the measures (on the basis that 70% of filesharers will stop infringing on the receipt of their first letter.) These, it is claimed, are both based on flimsy evidence.
The Judge was somewhat sceptical when asked to consider the loss of social welfare as a result of the new measures of the DEA. He rhetorically asked whether one should consider how a burglar loses out when a homeowner decides to install a burglar alarm in his house. Mr White contended that the use of the 'robust language of theft' did not serve to further the debate. The Judge seemed to remain unconvinced.
He was, however, more sympathetic to the issue of the costs of subscriber appeals being left out of the Government's considerations. It was heard that the Government's own research acknowledged these costs could be 'significant' but had apparently been ignored.
Counsel for Defence began their submissions in the afternoon, turning first to the Technical Standard Directive. This is a matter of interpretation and it was contested that a significant part of the new measures were to be contained in the Initial Obligations Code and not the Act itself- therefore concluding that notification to the European Commission was not required as- should they arise- any creases in the law could be ironed out by Amendments.
Defence continue their submissions tomorrow, and it is likely the Review will spill over into Monday next week.
Jag Bahra / Eugenio Quintieri