Précis BT and TalkTalk have lost an appeal to the Court of Appeal challenging Government proposals to tackle copyright infringement online.

What? BT and TalkTalk argued that the Digital Economy Act was incompatible with EU law and lost.

So What? The Court of Appeal’s judgment will be welcomed by rights holders as a key step in efforts to tackle online infringement.

In 2011, BT and TalkTalk challenged provisions of the Digital Economy Act (the “Act”) in the High Court and lost. BT and TalkTalk had objected in particular to provisions of the Act which imposed various (well-publicised and hotly contested) obligations on internet service providers including an obligation to send copyright infringement notices to subscribers and to provide information about subscribers to rights holders in certain circumstances.

After a battle to obtain permission to appeal, BT and TalkTalk were granted permission (in July 2011) to appeal the High Court’s decision in the Court of Appeal. BT and TalkTalk argued in the Court of Appeal that provisions of the Act were incompatible with EU law. On 6 March, the Court of Appeal dismissed BT and TalkTalk’s appeal.  The decision will be welcomed by rights holders and fiercely criticised by other parties who argue the sanctions imposed by the Act will impinge on individuals’ privacy and freedom of expression.

Ofcom is charged with providing a code of practice for ISPs regarding compliance with ISPs’ obligations under the Act. Ofcom’s work has been on hold pending the outcome of BT and TalkTalk’s appeal. The Court of Appeal’s ruling should, finally, clear the way for Ofcom to complete and issue the code. However, BT and TalkTalk may decide to pursue a further appeal in the Supreme Court which would delay the process still further.  The Court of Appeal’s verdict may well not be the last we hear on the issue.