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January 20, 2011 | Peter Bradwell

ORG will intervene in DEA Judicial Review

Some excellent news: ORG has been given permission to intervene in the Judicial Review of the Digital Economy Act. The review was granted to BT and Talk Talk late last year on four specific points (there's a good roundup of the background here). Having permission to intervene means that we'll be able to put forward our case, in court, in clear terms, to outline why we think the Act is so badly flawed. Across all four points we will be making arguments that the Act threatens to curtail people's rights to freedom of expression, endangers their privacy, and will have a disproportionate impact not only only the public but on businesses too.

The reason ORG continues to campaign against policy such as the DEA is that we believe more flexible copyright can support freedom of expression, creativity and innovation. And, likewise, we believe that aggressive enforcement of copyright, like the measures included in the Digital Economy Act, will mean our freedom of expression and privacy will be undermined.

The DEA is a manifestation of a mistaken approach to copyright that just won't allow people to take advantage of incredible new opportunities for creation, discussion and debate. So it's great from this wider perspective that the Judicial Review could deal a blow to the Act, which would at the very least be severely delayed. With two other related reviews ongoing in the UK - the Hargreaves Review of Intellectual Property and the Culture, Media and Sport Committee Intellectual Property Rights Inquiry -  it would start to look like a chance for significant reform.

We'll be putting together our submission over the next week or two. Let us know if you have suggestions about what we should include. And stay in touch, as we'll be keeping you up to date as we go.

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Comments (8)

    1. PC Repair London:
      Feb 04, 2011 at 09:43 PM

      I hope your campaign is successfull

  1. Robert Neuschul:
    Jan 20, 2011 at 05:18 PM

    Whilst the permission to submit such an amicus brief is hugely good news, the JR itself can only centre on points of law.

    It therefore concerns me that your comments above are mostly concerned with matters of opinion and social perspective [such as the evolving or emerging need to change the wider IPR law] rather than the legal aspects of this case.

    ORG's perspective may be weighty and sound social and political arguments in their own right, but JRs are notorious/renowned for sticking strictly to matters of law.

    Please don't waste this opportunity: be sure that when you present the brief that you are presenting strongly on those 4 points of law which the JR is actually addressing.

    1. Phil:
      Jan 21, 2011 at 05:00 PM

      Robert,

      Wise comments. I suspect the application would not have been granted had ORG not already been able to set out a scope for its representations that would be both on-point and useful to the court in reaching a verdict.

      On a wider point, I trust you recognise that ORG exists at the interface between societal concerns, and the law. The UK sadly does not have a codified Constitution that answers those concerns for us; one to which the digital rights movement can point to and say 'the DEA is illegal as it runs contrary to this Constitution [a proxy for our concerns]'. It only - in this matter - has the laws which form the basis of TalkTalk and BT's exceptionally well set out case, unless you think they missed something.* If they argue the case to its fullest, with ORG's support, and prevail, ORG presumably goes some way towards achieving its immediate, DEA-focused objectives; if it does not, after ORG has been able to adduce evidence of those aforementioned digital rights concerns (as well as what you urge them to stick to), then the result is prima facie evidence that the body of UK law has come up short in not offering a proxy for those digital rights concerns. That is not something to be sniffed at.

      *perhaps they did, in which case I hope ORG will intervene again when someone, who is affected in a way in which BT and TalkTalk are not, also decides to take legal action over DEA.

      1. lila:
        Jan 24, 2011 at 07:45 PM

        Phil I am really sorry, but "I suspect the application would not have been granted had ORG not already been able to set out a scope for its representations that would be both on-point and useful to the court in reaching a verdict." is simply not true, you don’t have to set out the scope of your intervention in any detail at all.

        Re: "The UK sadly does not have a codified Constitution that answers those concerns for us; one to which the digital rights movement can point to and say 'the DEA is illegal as it runs contrary to this Constitution [a proxy for our concerns]'." Yes, quite, but you got the human rights act and the European Convention on Human Rights and you got data privacy laws, laws on ISP liability etc constitution or not, there are important points of law engaged.

        The reality is that ORG's intervention will simply not be taken serious if you don’t engage with points of law and/or advance some reliable evidence to underline your points.

        Simply going "we believe in digital rights and we don’t think the DEA complies with them" will get you nowhere in the court. For a start, define what "digital rights" are..... if you want new laws and rights at UK or EU level, the JR is not a place to get them. Its about the interpretation of existing laws.

  2. Ed Boal:
    Jan 20, 2011 at 08:00 PM

    I am inclined to agree with Robert. Judicial review relates only to the lawfulness of an enactment and while the views of ORG are perfectly valid, it is important that the submission has a basis in law. That being said, the Civil Procedure Rules do state that "representations may be made" which are not the same as legal submissions. It may be wise to get a lawyer to review your submission.

  3. Peter Bradwell:
    Jan 21, 2011 at 12:02 PM

    Mark - thanks!

    Ed and Robert - thanks a lot for your comments, and you're absolutely correct to point out the context of our intervention. It is great from ORG's broader perspective that the Act is being reviewed. But the Judicial Review itself is concerned with four points relating to the *lawfulness* of the Digital Economy Act, which determines the kind of response we will provide.

    It's worth noting that one of the points on which the review was granted was proportionality, or more specifically whether any interference with principles of European law is proportionate. And arguments and evidence about that can have the same flavour as those about policy.

    Also good points about legal expertise - we will be working with the excellent Francis Davey (http://www.francisdavey.co.uk/) in putting together our submission.

    For (lots and lots) more detail on the points on which the review was granted, you can get hold of the 'Statement of Facts and Grounds' from the Talk Talk blog here: http://bit.ly/gIoEfw

  4. MrB:
    Feb 25, 2011 at 11:39 PM

    Great news, although why organizations such as yourselves are not consulted early in the process is in need of a review in itself.



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