Digital Economy Act subject to Judicial Review

11 Nov 2010

BT and TalkTalk have been granted permission to apply for judicial review of the online copyright infringement provisions of the Digital Economy Act 2010.

The Act is intended to reduce illegal file-sharing. Once a code is made by Ofcom under the Act, copyright owners will be able report illegal file-sharing activity to ISPs, who must then notify the subscriber that they risk further action being taken against them. Ultimate sanctions might include a subscriber’s broadband connection being suspended, if a code made by Ofcom so allows.

BT and TalkTalk claim that the Act is unenforceable, arguing it ought to have been notified in draft to the European Commission under the Technical Standards Directive before being enacted by Parliament. They also argue that it is inconsistent with the e-Commerce Directive, which limits ISPs’ liability for traffic on their network and prohibits the imposition of a general obligation to monitor information transmitted or stored by ISPs. They also claim that it breaches the Privacy and Electronic Communications Directive on data protection grounds. The Secretary of State denies each of those claims.

The substantive hearing of the judicial review application is likely to be conducted in February 2011.

Robert Palmer is instructed on behalf of the Secretary of State for Business, Innovation and Skills (“BIS”)

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Robert Palmer