The High Court allows BT and Talk Talk to have their say on the Digitial Economy Act 2010

The House of Commons Culture, Media and Sport Select Committee has extended the deadline for written submissions to its inquiry into the protection of intellectual property rights online until 23 March 2011 following the decision of the High Court to allow BT and Talk Talk to apply for judicial review of certain parts of the Digital Economy Act 2010 (the Act). The Select Committee inquiry commenced in November last year and the deadline for submission was originally scheduled for 5 January 2011. This deadline has been extended to allow the judicial review hearing to be completed.

The Act, which received Royal Assent on 8 April 2010, implements the Digital Britain report and covers a range of issues including online copyright infringement, public service broadcasting and content network infrastructure and digital safety.

Sections 3 to 18 of the Act, which are of particular concern to BT, Talk Talk and other Internet Service Providers (ISPs), relate to online infringement of copyright and impose various obligations on ISPs including:

  • Notifying a subscriber if an Internet Protocol (IP) address associated with that subscriber is reported by a copyright owner as being used to infringe copyright; and
  • Providing copyright infringement lists to copyright owners. Whilst these lists are initially anonymous the copyright owner could apply to the courts for an order to obtain the names and addresses of those subscribers.

The Act also gives the Secretary of State the power to make an order imposing an obligation on ISPs to enforce a range of technical measures against subscribers who have had more than a prescribed threshold number of copyright infringement reports made against them including limiting internet connection speed and suspending that subscriber's service.

If the ISPs do not adhere to the legislation they face a maximum penalty of £250,000 although the Secretary of State has reserved the right to increase this amount.

From a copyright owner's point of view, legislation to reduce peer-to-peer file sharing is desperately awaited. There have been a number of concerns raised about the provisions however, not least because of the fact that the Act was rushed through as part of the "wash-up" procedure rather than under normal parliamentary procedure. This means that a very limited debate of the Act took place.

BT and Talk Talk applied for judicial review of the provisions referred to above in July 2010 arguing that the provisions represented a disproportionate response to concerns surrounding unlawful peer-to-peer file sharing. They also argued that the Act raised serious concerns about the privacy of internet users and the confidentiality which users of BT and Talk Talk and other similar ISPs expected.

The proportionality arguments raise wide-ranging issues such as:

  • The risk that the provisions will impact upon and have a negative effect on innocent internet users whose internet service has been used for illicit purposes by third parties;
  • The risk that the provisions will have a stifling effect on internet use; and
  • Concerns generally about the way in which the UK Government conducted the proportionality assessment.

The judicial review hearing is expected to take place some time in February 2011. The outcome of the case will be keenly anticipated in many quarters but its impact will likely be just one of the factors that influence the further reforms stemming from the ongoing review of the UK's intellectual property regime.