The judgment in R (British Telecommunications Plc) v BPI (British Recorded Music Industry) Ltd & Ors [2012] EWCA Civ 232 is now available. The Court of Appeal rejected the appeal by BT and TalkTalk save in one relatively minor particular relating to case fees.
Permission to appeal had been granted on grounds that cover four areas:
(1) Ground 1: whether the contested provisions should have been notified to the EU Commission in draft pursuant to Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC, (“the Technical Standards Directive”), with the result that they are unenforceable for want of notification.
(2) Ground 2: whether the contested provisions are incompatible with provisions of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the Electronic Commerce Directive” or “the ECD”).
(3) Ground 3: whether the contested provisions are incompatible with provisions of Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Data Protection Directive” or “the DPD”) and/or of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (“the Privacy and Electronic Communications Directive” or “the PECD”).
(4) Ground 4: whether the contested provisions are incompatible with provisions of Directive 2002/20/EC of 7 March 2002 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC, (“the Authorisation Directive” or “the AD”).
All four grounds were rejected.
