BT and TalkTalk announced today that they are seeking a judicial review of the Digital Economy Act (DEA).
The UK’s two largest ISPs said they were challenging the online anti-piracy provisions of the Act on the grounds that the process under which they made it into the Digital Economy Bill, and then the statute books, was flawed.
‘We’ve asked the High Court to look at whether the Act was passed into law without going through the correct parliamentary procedures,’ wrote TalkTalk chairman Charles Dunstone on the TalkTalk blog.
‘As many of you will know, the Act was rushed through Parliament in the ‘wash up’ period after the General Election was called in early April. It’s our belief that this haste meant the Digital Economy Bill, as it then was, became law without being properly scrutinised and without its impact being properly assessed.’
The ISPs fear that the anti piracy provisions outlined in the Act, which state that any ISP which has over 400,000 subscribers, must be subject to the new anti piracy code of practice being drawn up and implemented by Ofcom, could lead to subscribers moving to smaller ISPs to avoid detection or having their privacy invaded.
Ofcom’s file sharing code of practice
Orange, O2, Sky, Virgin Media and the Post Office will also have to monitor their subscribers under obligations proposed by the DEA to tackle illicit file sharing. Dunstone wrote that he believed these were in breach of the human rights legislation, and European privacy and telecommunications regulations.
‘In particular, we are concerned that obligations imposed by the Act may not be compatible with important European rules that are designed to ensure that national laws protect users’ privacy, restrict the role of ISPs in policing the internet and maintaining a single market.
‘In our view the previous government’s rushed approach resulted in flawed legislation. Innocent broadband customers will suffer and citizens will have their privacy invaded by this Act,’ Dunstone concluded.
Which? says ‘Don’t abandon the DEA’s principles’
Richard Hyde, economic policy research assistant at Which? agreed that the DEA had been passed without the usual extensive debate, and said any measure that improved the Act was welcome, but urged caution:
‘We do not want to see the principles behind the legislation abandoned, namely to educate internet users and help people understand how to protect their internet connection which is a good thing,’ he said.
‘TalkTalk and BT are basing the grounds for their judicial review on the fact that the Bill was passed through the ‘wash-up process’, but this is a long established parliamentary practice in relation to passing Bills into law, in the last days of a parliamentary term.
He also questioned their querying of the legality of some of the requirements placed on ISPs and around the impact the Act will potentially have on civil liberties. ‘These are issues that the government would have already considered before it introduced the Bill to Parliament,’ he explained.
‘Consequently, Which? is cautious as to how successful a judicial review will be under these circumstances, with the additional danger of a successful judicial review being that the new graduated response is delayed and the current worrying practices carried out on behalf of some rights holders, pursuing alleged copyright infringers, continues.’
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