ISPs lose in judicial review of DEA

The challenge by TalkTalk and BT to elements of the Digital Economy Act 2010 and the draft Copyright (Initial Obligations) (Sharing of Costs) Order 2011 has failed on all grounds except for a relatively minor point on the sharing of administrative costsThe challenged provisions included those related to the initial obligations code in Sections 3-7 including the provision of a copyright infringement reports (CIRs).

The High Court rejected, for example, the argument that the provisions were a “disproportionate restriction on the free movement of services and/or the right of privacy and/or the right to free expression” (para 203) stating at para 211:

In this case Parliament has addressed a major problem of social and economic policy, where important and conflicting interests are in play. On the one hand, there is evidence to suggest that the media industry, broadly interpreted, is sustaining substantial economic damage as a result of unlawful activity on the internet; and there is concern that such damage may significantly affect creativity and productivity in an economic area of national importance where, at least historically, the UK has tended to enjoy some comparative advantage in international markets. On the other hand, the business models of ISPs are constructed on the basis that they are essentially conduits for the flow of information, and the efficiency, cost effectiveness and competitiveness of their operations depend on the minimum regulatory interference with that flow of traffic, and on the minimum responsibility and burden in respect of the actual content of the material passing through the conduit. Similarly, subscribers of the ISPs and users of the internet appreciate that the technology is the most prodigious tool for the transmission and interchange of information and other material ever designed, and, in general, they would oppose restrictions on their ability to enjoy untrammeled access to such information and material. Information is also a public good, and interference with access to, and publication of, information may adversely affect general welfare. How these competing and conflicting interests should be accommodated and balanced appears to me to be a classic legislative task, and the court should be cautious indeed before striking down as disproportionate the specific balance that Parliament has legislated. 

The Court refused refused to make a reference to the Court of Justice of the European Union.

The British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) judgment may be found here.

Previous posts on the DEA may be found here and here.

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