Freeloaders Get A Reprieve

Plans to send thousands of warning letters to alleged illegal downloaders have been put on the backburner as ISPs including BT and Talk Talk challenge the legality of Britain’s Digital Economy Act.

Plans that govern the way rights owners accuse suspected downloaders were to be published at the end of March, but there’s also little sense in doing that until the result of the judicial review is known.

The review itself appears to have bogged down on whether certain aspects of the DEA contravene a European Commission technical standards directive, in which case the EC should have had prior notice of it – although that could hinge on how the directive is interpreted.

Mr Justice Kenneth Parker acknowledged there’s no exact precedent for determining the issue, which sort of leaves it in a legal grey area.

The Open Rights Group, Consumer Focus and Article 19, a global campaign for free expression, lined up alongside BT and Talk Talk to say that – without the EC notification – the new regulations are unenforceable.

The British Phonographic Industry, which has once again seen piracy blamed for a 3.25 percent fall in the value of the UK music market, and various other rightsholders backed the DEA.

The issue with the EC directive seems to hinge on whether the DEA has introduced “pure enabling measures” to fight piracy or whether the law amounts to a “new set of technical standards,” which would require notifying the EC.

The EC directive also prohibits general monitoring by ISPs and the new UK law requires the providers to maintain a database of would-be infringers. Whether this amounts to “general” monitoring or “specific” monitoring based on evidence that illegal activity is taking place is another question to be thrashed out.

The Court heard the concerns of the European Data Protection supervisor Peter Hustinx, who has claimed that the data processing procedures involved in a “graduated response” model of countering infringement involved “highly invasive activities” likely to affect millions of innocent Internet users.

The EPA also claimed that the DEA is in contravention of the Privacy and Electronic Communications Directive regarding personal data.

This may lead to further discussion on the nature of personal data. The ISPS will argue that IP addresses are necessarily linked to subscribers, which arguably makes an IP addresses someone’s personal data.

Justice Parker may consider referring the matter to the European courts, although it’d mean the issues wouldn’t be resolved for at least two years.

If he reaches a judgment himself, the losing side will likely appeal and that may take just as long.