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April 20, 2011 | Jim Killock

Judicial Review: initial reaction

The case isn’t over yet. BT and TalkTalk are looking to see if there is room to appeal, and if the questions about Eu law should be referred to the European courts. This is what TalkTalk have had to say:

“We’re disappointed that we were unsuccessful on most of the Judicial Review. On the question of the proportionality of the Act, we’re pleased the judge identified issues but disappointed that he felt that the evidence of the futility of the measures imposed by the Act, and the cost and harm they will cause, is not sufficiently definitive enough at this stage to uphold our claim. We are reviewing this long and complex judgement and considering our options, which may include an appeal to the Court of Appeal, or a request that the Court of Appeal make a reference to European Court of Justice. Though we may have lost this particular battle, we will continue fighting to defend our customers’ rights against this ill-judged legislation.”

BT have echoed this, saying:

“We are disappointed with the outcome of the Judicial Review. We are reviewing this long and complex judgement. Protecting our customers is our number one priority and we will consider our options once we have fully understood the implications for our customers and businesses.

“This was always about seeking clarity on certain points of law and we have to consider whether this judgment achieves these aims.”

The costs order is significant, and quite bad. The potential precedent of formally shifting the costs of copyright enforcement away from private owners and onto third parties could create future legislative requests to all kinds of services, manufacturers and individuals.

The questions about notification to Europe under the Technical Standards Directive seem important to resolve at that level.

Proportionality questions were always going to be difficult. Judges don’t like interfering the right of democratically elected politicians to make mistakes. So even when they do something very stupid, they are reluctant to change their decisions when passed into law.

Perhaps more worrying are the questions around privacy. We’ve yet to see and read the judgement, but it would be very unfortunate if the judicial system were to undermine our legal rights.

UPDATE: 11.15

The text of the decision has been posted here.

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