Friday 12 November 2010

From Jaw-Jaw to JR: TalkTalk, BT get judicial review of DigiBill

"Net providers get Digital Economy Act judicial review" is the title of a news item on the BBC website. The story is that ISPs TalkTalk and BT have been granted judicial review of the Digital Economy Act by the High Court (see Ben's post here for background).  The Beeb's take on things runs like this:
A judge will now scrutinise whether the Act is legal and justifiable, and could make wide-ranging recommendations [If I were a judge, that's the last thing I'd do unless I could divorce any suggestions entirely from the realm of legislative policy, which is where most of the controversy lives]. BT and TalkTalk argued that the legislation had been "rushed through parliament" before the election [this is beyond doubt: the Bill was subject to a dramatic wash-up process: see John's post here].

Internet service providers (ISPs) are unhappy with the part of the Act that requires them to take action against suspected illegal file-sharers. Depending on the judge's ruling, the government may be forced to change or even scrap the legislation.

... During the parliamentary debate about the Digital Economy Bill, held in the final days before the parliament was dissolved before May's general election, some MPs [but not very many -- only 6% of the country's elected representatives turned up for it] complained that it needed more debate because of its complex nature.
...  A judge will conduct a full review in February, considering whether the parts of the Act that deal with illegal file-sharing are in breach of the E-Commerce Directive, which rules that ISPs cannot be held liable for traffic on their networks. The Act will also be measured against EU privacy and technical standards legislation.

... Ofcom has been working on a final code of practice [see eg Jeremy's post here] for how the process of monitoring file-sharing will work in the UK. It has the power to slow down the net connections of persistent pirates or even cut them off completely, although such measures would not come into force until at least 2012.

A caveat added at the last minute stipulated that new legislation and several rounds of consultation would be required before such a course of action was taken. A spokeswoman for the regulator said it was "business as usual" as far as the code of practice was concerned.

The regulator is expected to publish its final code later this week ..."
Early responses can be gleaned from Which?, The Guardian, Information Age and The Telegraph


Anonymous said...

Does this hinge on what you mean by 'liability'? Under the DEA, ISPs are placed under obligations to send illegal file-sharers letters and possibly suspend their accounts. This will be a legal obligation but this is not 'liability' in the sense that ISPs are liable for copyright infringement. My understanding of the 'liability' defences in the ECD is that they protect ISPs from liability for copyright infringement etc, not from every type of legal obligation. After all, the protection of ISPs from liability in the ECD does not preclude the possibility of injunctions, which would place ISPs under legal obligations.

Thomas Dillon said...

Actually, the idea that the DEA did not receive adequate parliamentary scrutiny is a myth which the ISPs and other opponents of the law have successfully inculcated. It was a Lords Bill (remember who was BERR Minister at the time?) and received endless consideration, thanks to the lack of guillotines in the Lords. If it had been in the Commons it would never have received anything like the discussion it received. But I fully expect the myth to survive...