Day three of the Judicial Review of the Digital Economy Act - Counsel for the Defendants continued with their submissions.
With regard to the Technical Standards Directive, the Defendants’ argument is based on the claim that much of the substance of the obligations and restrictions imposed by the DEA are not included in the Act itself but in the Code- which is still nothing more than “a twinkle in the legislators’ eye” and therefore not subject to scrutiny.
Moving onto the E-Commerce Directive, the Defendants asserted that a “significant and substantial” aim of the European Community is to protect the rights of copyright owners. The Claimants’ reliance on the mere conduit principle was challenged, although the Judge appeared concerned, noting that perhaps a narrow exception would be justifiable but nothing more. He also identified some inconsistency in the Defendants’ interpretation of the law, reminding Mr Palmer that a mere conduit cannot be held secondarily liable for infringements.
On the issues of Data Protection and Privacy, it was suggested by the Defendants that the processing of data in this case could be permissible as it was in the public interest. The Judge seemed reluctant to accept this. The Court heard that ISPs are currently required to retain some data for the prevention of serious crime, though this is not analogous to the DEA and copyright infringement.
The issues raised by the Claimants in relation to proportionality and impact assessment were largely ignored. The Judge asked Mr Palmer whether it was of concern to the Defendants that certain “elementary howlers” may have been made. However, Mr Palmer declined to defend the Government’s cost-benefit analysis, stating that to do this would be to adopt a “telescopic view” ignoring the wider issues. The legal effect of the Act alone should be examined, and it was insisted by the Defendants that “it doesn’t matter why the Act was passed through Parliament, it only matters that it was.”
It was suggested that the Act sought to reduce use of the litigation process with its graduated response and warning letters and was therefore necessarily proportionate.
The question of whether the measures of the Act will actually be effective was dismissed as simply irrelevant, and that even if P2P accounts for only 37% of filesharing, this is still a significant amount to be aiming to reduce. The potential for a chilling effect was downplayed in the same manner - the Defendants insisted that any effects were a price worth paying if it meant stronger protection of copyright.
The Judge recalled a case in which a flawed impact assessment had resulted in a piece of secondary legislation being held unable to stand. The DEA is of course primary legislation and would not necessarily fall at the same hurdle.
More complex points were argued with regard to the Authorisation Directive - and in particular that the DEA did not impose sufficiently strict obligations on ISPs to fall foul of the directive.
The claim for judicial review rests heavily on the more technical aspects of the EU Directives, rather than issues of consumer or human rights, and the defence clearly reflects this. Counsel for the Defendants will conclude on Monday before the Claimants present their reply submissions.
Jag Bahra / Eugenio Quintieri