BT and TalkTalk lose Digital Economy Act judicial review

BT and TalkTalk have lost a substantial portion of their judicial review against the Digital Economy Act, winning only a relatively small point regarding the administrative costs of identifying and notifying alleged unlawful file-sharers.

BT and TalkTalk lost a substantial portion of their judicial review against the Digital Economy Act, which campaigners protested against outside Parliament in March 2010. Photo credit: David Meyer

On Wednesday, Justice Kenneth Parker of the High Court dismissed all the other claims in the judicial review, which was initiated by the ISPs in November 2010. BT and TalkTalk had claimed the copyright crackdown act's provisions were disproportionate and incompatible with EU laws on privacy, freedom of information and the responsibilities of ISPs.

The companies also said the act, which sets out a new framework for punishing those who unlawfully share copyrighted material online, should not be enforceable because it had not been submitted in draft form to the European Commission, as required. Parker disagreed with all these points, agreeing only that BT and TalkTalk were entitled to relief over the administrative fees associated with carrying out the terms of the law.

"We are pleased that the court has recognised these measures as both lawful and proportionate," the Department for Culture, Media and Sport said in a statement. "The government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly."

The judicial review has delayed the implementation of the act. Notification letters were already supposed to be making their way to suspected file-sharers of music, films and other copyright content, but that is now likely to happen only next year.

'No proven gain'

BT said it was disappointed with the outcome of the judicial review, and was going over Parker's lengthy 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," a spokesperson said. "This was always about seeking clarity on certain points of law, and we have to consider whether this judgment achieves these aims."

We still believe that, if enacted, the act will hurt people's privacy and access to the internet for no proven gain.

– Peter Bradwell, Open Rights Group campaigner

The Open Rights Group (ORG) is a digital rights organisation that has long battled the Digital Economy Act and its terms. "It is important to remember that this is not a judgement on whether the Digital Economy Act is good public policy," ORG campaigner Peter Bradwell said in a statement. "We still believe that, if enacted, the act will hurt people's privacy and access to the internet for no proven gain. We hope that BT and TalkTalk will appeal and we will support them if they do."

'Botched legislation'?

The act was passed by Parliament just before the general election of May 2010, in a period known as the 'wash-up' — a phase of permissibly accelerated lawmaking in the final days of a sitting government.

As the then-Digital Economy Bill headed for its final reading in the House of Commons, it was attacked by what was then the Conservative Party opposition.

Jeremy Hunt, who was the shadow culture secretary at the time, derided it as "a weak, dithering and incompetent attempt to breathe life into Britain's digital economy", and shadow science and innovation minister Adam Afriyie said it was "botched legislation". Both MPs voted for the bill anyway, along with their colleagues.

The act also includes a provision that could force ISPs to block access to websites that help people unlawfully share copyrighted material. Culture secretary Hunt asked Ofcom in February to examine the viability of such measures, and rights groups have recently complained of a new website-blocking proposal being worked out in secret between the government, ISPs and rights holders.