The final day of the DEA judicial review was split between the Defendants concluding their submissions and the Claimants’ reply.
Counsel for the defendants stressed the importance of the fundamental right to property and that copyright is necessarily included within this. The protection of copyright is a legitimate aim to be pursued and this must be held in high regard when considering whether any restrictions are proportionate.
The Judge recognised the clear difference between identifying subscribers and identifying infringers, but stated that he could see how the DEA measures might be more proportionate than a “scatter-gun approach” which did not distinguish between repeat and first-time infringers.
The defendants raised the point that ISPs had previously recommended a notification regime as the most effective way to reduce online infringement.
Counsel then went on to assert that there was no evidence that the Act would cause any chilling effect. It was even suggested that the measures may have a “counter-chilling effect” as receiving a first-time infringement letter would be far less intimidating for consumers than being faced with a letter notifying them of imminent court action.
With regard to the cost-benefit analysis it was contended that even if the identification of potential benefits was wrong, an important policy decision had been made which should not necessarily be undermined as a result.
The Judge stated that the Government would be “subjecting itself to ridicule” if it were to take into account a loss of social welfare suffered by copyright infringers. He also acknowledged that the issue of whether current Copyright law strikes the right balance would be “an entirely separate debate”.
In the claimants’ reply submissions Mr White QC contended that - as pointed out by the Defendants - it is the “legal effect” of the Act that is paramount, however there was no requirement for such effect to be “current” or “immediate” and this was a crucial distinction to be drawn.
It was also pointed out that the action of the DEA meant that Ofcom was now imposing obligations on ISPs. The Defendants acknowledge that the Act has had an effect on Ofcom and from this Mr White concluded that the Act was therefore already having an effect on ISPs. The Defendants interjected, claiming that Ofcom’s draft information requests were not mandatory and therefore this could not be considered a real effect on ISPs.
It was stressed once again that these issues must be dealt with now, rather than in several years’ time when any damage will have already been done and subscriber appeals will have to be brought.
Judgment will be handed down as soon as is reasonably practicable, but given the complexity of the arguments presented it is likely that this will be some time.
Jag Bahra / Eugenio Quintieri