Judicial Review
In a ruling that has surprised many, Mr Justice Wyn Williams has decided to grant the request, jointly lodged by TalkTalk and BT, for a judicial review of the parts of the Digital Economy Act. This ruling is only the first stage in the process of judicial review. It does not suggest that the application itself will be successful but it does mean that those who regarded the application as hopeless may have to eat their words. The hearing of the full judicial review application is expected in February. In legal terms, the basis of the application is thought to be that there is a clash between aspects of the Act and aspects of the relevant EU legislation.
TalkTalk’s blog included the following (posted on 10 the afternoon of 10 November):
‘We are very pleased to report that Mr Justice Wyn Williams announced that he was granting our request, jointly lodged with BT, for a judicial review of the parts of the Digital Economy Act relating to the obligations on ISPs which attempted to tackle illegal filesharing.
We had submitted our application on the basis that the Act was illegal and disproportionate in a number of ways. The Government had argued that our application was groundless. The judge today has effectively decided that there is a case to answer. We remain confident that we will win in the full hearing.
…
Our central [concern] is that the obligations won’t work in reducing illegal filesharing (they only tackle peer-to-peer filesharing and people will switch to other undetectable measures), will be hugely expensive (the previous government underestimated many of the costs) and most of all will be grossly unfair (mainly since the subscriber of a connection is effectively held responsible for the activities of other users of their connection and if they want to challenge rightsholders claims the subscriber will be presumed guilty unless they can prove themselves innocent).
…
So we are extremely happy with the High Court’s decision and we now look forward to the full judicial review.’
No transcript of the judgment is currently available.
Parliamentary Committee Inquiry
In an intriguing coincidence, The Culture, Media and Sport Committee issued ‘a call for evidence on the Protection of Intellectual Property Rights Online’ on the same day
The Committee will consider the new framework for the protection of intellectual property rights online that is being established under the DEA and ‘the extent to which it is a reasonable and sufficient response to the challenges facing creative industries and individuals in digital markets’. Issues the Committee will be considering include:
The implementation, practicality and likely effectiveness of the relevant measures contained in the Digital Economy Act. In particular:
- Whether the new framework has captured the right balance between supporting creative work online and the rights of subscribers and ISPs.
- Whether the notification process is fair and proportionate.
- The extent to which the associated costs might hinder the operation of the Act.
- At what point, if at all, consideration should be given to introducing the additional technical measures allowed for under the Act.
More broadly, the scope for additional activity and new approaches to ensure that original work is appropriately rewarded in the online environment, including the issues raised by the Government’s review of the intellectual property framework. In particular:
- Intellectual Property and barriers to new internet-based business models, including information access, the costs of obtaining permissions from existing rights-holders, and “fair use.”
The Committee is inviting written submission on the above and other matters relevant to the inquiry. Submissions should be received by Wednesday 5 January 2011.
There is more on the Committee’s initiative here.
