BT and TalkTalk have launched a legal challenge against new legislation designed to tackle illegal internet filesharing and protect intellectual property rights online. If the court finds in their favour, the act would no longer be enforceable. Here’s why…
The two ISP’s argued at the High Court in London that the Digital Economy Act 2010 was seriously flawed and “incompatible” with European law.
Their QC told a judge its measures would unlawfully “impact on the privacy and free expression rights” of consumers.
The companies, two of the UK’s largest internet service providers (ISPs), are also challenging the legality of the statutory order, currently before Parliament in draft form, designed to regulate the sharing of the costs of implementing the measures.
Simon Milner, BT’s head of industry policy, said: “It is a big deal to be judicially reviewing primary legislation but we took advice and there were very clearly were some real problems.”
“It might find that it is all fine – I’d be surprised if it was – but we are going to court to get legal clarity. Peer-to-peer file-sharing is yesterday’s game. People now are going off the network where they won’t be detected – swapping hard-drives, and getting music via blogs and upload sites”
The courts will consider whether the act is in line with European legislation, in particular as it relates to users’ privacy and the role of ISPs.
Pressure on ISPs
The previous government brought in the tough measures to deal with the growing issue of internet piracy.
Under the current legislation, content providers will have to monitor peer-to-peer networks for illegal activity and collate the IP addresses – the numerical code that links a particular computer network to an illegally downloaded file.
They can then apply to a court to force ISPs to surrender the real world address that is connected to that IP address.
Letters could then be sent to alleged net pirates, advising them that their computer connection has been used in illegal activity.
Penalties Vs education
The creative industry is keen that the emphasis will be on education initially, although people will go on a blacklist which could in future be used to take individual infringers to court.
Other penalties, such as slowing down net connections or even cutting people off from the net entirely have not been ruled out, but would need additional legislation.
The letter-writing strategy bears similarities to the tactics of discredited law firm ACS: Law, which sent over 10,000 letters to alleged net pirates.
Unlike content providers, which will not be levying fines, ACS: Law collected some £300,000 from people – who were charged an average of £500 per infringement.
Not everyone paid up and 27 cases recently went to court in highly controversial circumstances.
During the court case, doubt was cast over whether an IP address was suitable evidence of wrong-doing as it does not identify the individual user – only the location of their connection.
Consumer watchdog Which? highlighted several cases where people claimed to have been wrongly accused.
Charles Dunstone, chairman of TalkTalk, thinks the same thing will happen if the government’s measures go ahead.
“Innocent broadband customers will suffer and citizens will have their privacy invaded,” he said.
John McVay, chief executive of PACT (Producers Alliance for Cinema and TV), who will represent the UK’s creative industries at the judicial review, defended the act.
“The Digital Economy Act is the result of many years of consultation and presents a reasonable and balanced solution,” he said.
