Unraveling The Digital Economy Act

The fact Internet service providers BT and TalkTalk have been granted a judicial review of the Digital Economy Act will likely accelerate the unraveling of the law passed in the last days of the outgoing Labour government.

Mr Justice Wyn Williams ruled the ISPs had grounds for a review on three of the four points they raised. He made the judgment Nov. 10 and senior judges are expected to get the review under way at the beginning of next year.

The points that led to the review were whether the government gave the European Commission enough notice to properly scrutinise the legislation, whether the act complies with existing EU legislation on data protection and privacy, and whether it is compatible with existing EU legislation on e-commerce.

BT and TalkTalk, two of the UK’s largest broadband providers, mounted their legal challenge to the Digital Economy Act in July, warning that it could infringe on Internet users’ “basic rights and freedoms” and was given “insufficient scrutiny” in parliament.
The result of the action won’t please the British Phonographic Industry, which said BT and TalkTalk’s legal challenge was “misconceived and will fail.”

Although members of the current Conservative-Liberal Democrat coalition supported the Digital Economy Bill, Nick Clegg – now deputy prime minister – said at the time the act “badly needs to be repealed and the issues revisited.”

Since then, the law has caused a High Court judge to complain that he’s running out of patience with the way UK anti-piracy laws are being enforced.

Judge Chief Master Winegarten said the law is akin to using “a huge sledgehammer to crack a nut,” and also warned that future applications for names of suspected illegal file-sharers may not be successful.

A leaked business plan for London-based solicitors’ firm ACS:Law shows hundreds of thousands of pounds can be recouped from sending out “pay up or else” letters to suspected illegal file-sharers.

ACS:Law, Gallant Macmillan, Davenport Lyons and Tilly Bailey & Irvine were among the lawyers subjected to public criticism for sending such letters to broadband users who claimed to have been wrongly accused.

Davenport Lyons and Tilly Bailey & Irvine have since withdrawn from the business of chasing suspected file-sharers because of the damage it was causing to their reputations.

Apart from BT and TalkTalk winning their case, culture minister Ed Vaizey is setting up a summit where rights holders and technology companies can thrash out their “sticking points” regarding anti-piracy legislation.

Telecoms watchdog Ofcom is currently finalising ISP’s obligations under the new act, but lawyers have said the law’s very existence is in limbo until the review.