BT and Talk Talk appeal of judicial review decision

BT and Talk Talk have announced that they will be seeking leave to appeal the result of their judicial review of the Digital Economy Act.
In March the two ISPs contended that the DEA fell foul of several provisions of EU law – namely the Technical Standards Directive, Authorisation Directive, E-Commerce Directive and the Privacy and Electronic Communications Directive – and was a disproportionate response to the problem of online copyright infringement.
Handing down his judgment in April, Justice Kenneth Parker dismissed the appeal on all grounds with the exception of cost-sharing, ruling that ISPs should not have to pay a portion of the costs incurred by Ofcom in implementing the new regime. You can read our round up of the hearing here.
The ISPs now wish to take the matter to the Court of Appeal, seeking further clarity with regard to the Act’s compliance with EU law.  BT stated that “the High Court’s conclusions on many of the other important and complex issues put before it were not robust enough to provide the certainty and clarity which the companies sought”.

Proportionality – the fifth ground on which the original case was based and the one which dealt with most of the issues with which ORG was concerned – will not form part of the appeal.  Given the Court’s approach last time this is understandable.  Subjective arguments about whether or not the anti-piracy measures of the Act will reduce infringement without impeding the rights of innocent users will always be difficult to argue in Court, especially when the threshold of proof is so high.  It should be borne in mind that it is not the role of the Court to consider the substantive merits of the Act.  A judicial review of primary legislation as in this case must simply consider whether the Act complies with the obligations set out under European Law. 

When considering whether the Act does represent a proportionate response to file-sharing it is useful to look at the UN report, which Jim wrote about, that calls some of the Act’s measures an ‘alarming’ violation of human rights. It is also worth reading the recent Hargreaves review which undermines the evidence used to justify this kind of enforcement policy.
BT insist that they “continue to take the view that the [DEA] regime represents a disproportionate interference with the rights of internet service providers, subscribers and internet users and with the concept of freedom of expression.”
If given the go-ahead by the Court, the appeal will further delay the implementation of the anti-piracy measures of the Act.  This will frustrate those rights-holders who are eager to curb online infringement whilst paying less regard for the likely adverse effects on innocent internet users.  For example, in the wake of the judgment in April John McVay of the Creative Industries Intervening Group announced “rather than needlessly spending more time and money on further legal challenges, BT and TalkTalk now need to focus on working with rightsholders and the Government in implementing the DEA with immediate effect.”

Perhaps the Government will learn from this messy situation and in future give new laws the full debate and scrutiny that they deserve.  ORG fully supports BT and Talk Talk in their appeal.  We will keep you updated with progress.