The High Court Judicial Review of the DEA

Over the summer, BT and TalkTalk filed papers with the High Court requesting a judicial review of the Digital Economy Act (DEA). As of Wednesday, the BT and TalkTalk won their battle and a review of the DEA will take place in February.

Recently, TalkTalk published the joint statement of facts that it filed with BT this past summer. Though the findings of the review will not be announced until next year, it is interesting to take a quick look at how they are contesting the Digital Economy Act.

TalkTalk and BT claim that provisions of the Act governing online copyright infringement are incompatible with EU on the following four points:

1. TalkTalK and BT should have been notified under the EU Technical Standards Directive (98/34/EC, as amended by 98/48 EC) in writing by the European Commission because the provisions listed in the DEA are burdensome. Under this directive, any technical regulations that require notification from a company to a third party must be submitted in writing to the European Commission. The UK has not notified the EC in the case of the DEA.
2. The provisions are incompatible with the EU Electronic Commerce Directive (2000/31/EC) which sets out a legal certainty on communications and transparency on a variety of services including ISPs. The specific provisions of the DEA violate this directive.
3. The provisions contradict the EU Privacy and Electronic Communications Directive which outlines data processing for ISPs among other groups.
4. And finally, the provisions are disproportionate in that they infringe:

   a. The free movement of services under the Treaty of the Functioning of the European Union;
   b. Article 3(4) of the E-Commerce Directive;
   c. Article 15(1) of the Privacy and Electronic Communications Directive;
   d. UK Human Rights Act 1998 and to Articles 8 and/or 10 of the European Convention of Human Rights relating to privacy and freedom of expression.

The Coalition Government challenge these specific points and the others that have been made in the joint statement of facts. The result of this review is not expected until at least February 2011, but if the High Court finds in favour of TalkTalk and BT, the copyright infringement provisions of the DEA could be nullified and then the government and music industry would be back to where they started – back at the very beginning with no law and no obligations code.