Judicial Review should be the beginning of the end of the DEA
So we now have a Judicial Review of the Digital Economy Act. Congratulations to BT and Talk Talk!
Just days before Ofcom is expected to publish their statement of the Initial Obligations Code, this decision by Justice Williams puts the future of the Act and the filesharing code into doubt.
With any luck the Act will now get the full scrutiny it deserves, and which the last Government denied MPs when the Bill was rushed through in the last days of Parliament earlier this year. The court will now have to clean up the legal mess the Act caused.
ORG has outlined that the Act and the code are unworkable (links here and here). The most worrying one probably is that the Act, in it current form, could lead to thousands of innocent people being accused of illicit filesharing. Furthermore, there is the threat of web blocking and disconnection in a possible second stage. This is not the main issue now and Ofcom have repeatedly said they will not discuss it. But we need to know what will happen further down the line. There are a lot of unanswered questions, for example: will people remain on the repeated infringers list and only need one more notification to face disconnection?
Let’s make sure that these provisions are scrapped.
Three grounds accepted, one outstanding
The full hearing was granted on three grounds. The decision on the fourth, which concerns the proportionality of the DEA provisions will be announced on Friday.
In the Judicial Review the High Court will, probably in early February 2011, decide whether the Act complies with EU legislation. The four grounds BT/Talk Talk claimed are as follows.
Firstly the Government should have notified the European Commission under the Technical Standards Directive which they failed to do.
The two ISPs also claimed that the provisions were not compatible with the E-Commerce Directive which provides that ISPs cannot be held liable for data going though their networks.
Thirdly, ISPs have to deal with data that is not specifically permitted under the Privacy and Electronic Communications Directive.
The fourth ground dealt with the disproportionate impact of the provisions on ISPs and in particular referred to the opinion of the European Data Protection Supervisor, Peter Hustinx. He concluded that generic three strikes regimes are a disproportionate measure.
Francis Davey provides more legal background to the process of the Judicial Review and the Government’s response.
We need an Act that respects freedom of expression and the privacy of citizens and promotes artists’ creativity and innovation for businesses.