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UK Court of Appeal stands behind the Digital Economy Act

14 March, 2012

This article is also available in:
Deutsch: Britisches Berufungsgericht bestätigt Digital Economy Act

The Court of Appeal has recently rejected the claims made by the two UK ISPs, BT and TalkTalk, that the Digital Economy Act (DEA) violates EU laws.

DEA requires ISPs to send warning letters to widespread file-sharers advising them that complaints have been made against them, and to provide lists of alleged infringements to music and film companies.

The ISPs brought the issue to the court arguing that DEA breached EU laws on data protection and privacy by restricting the customers' basic rights, was incompatible with provisions set out in the E-Commerce Directive and was unlawful because the Government did not give the European Commission enough time to scrutinise parts of the legislation.

The ISPs also argued that the measures introduced by the Act would place a financial burden upon them as they are required to support the costs of identifying illegal downloaders. Their only "success" was that the court admitted that they should not be required to pay 25% of the "case fees" resulting from ISP customers bringing appeals against warning letters. Hence, web users who consider they have been incorrectly added on the copyright infringement list, will have to pay 20 pounds in order to appeal against the notification.

"Publicly available wifi will be put at risk. Weak evidence could be used to penalise people accused of copyright infringement. And people will have to pay L20 for the privilege of defending themselves against these accusations. The Government needs to correct these errors with a proper, evidence-based review of the law," said Peter Bradwell of the EDRi-member Open Rights Group.

The ISPs have stated they would analyse the situation and decide on whether to appeal the decision. In any case, the first warning letters will be sent only in 2013 because media regulator Ofcom has first to set out a code of conduct for the new system.

Another case brought to court may cast some light on how DEA will function. On 9 March 2012, company Golden Eye International asked in court a Norwich Pharmacal Order (NPO) against Telefonica UK, requiring the latter to give away the details of about 9000 of its customers, so that they might send them threatening letters asking them to pay 700 pounds or face further legal action.

Under DEA, copyright owners would submit copyright infringement reports to ISPs and the latter would match IP addresses with customer records and pass on notifications to that user. After a certain number of notifications, a user may find himself on "copyright infringement lists". Copyright owners may apply for NPO for personal data of those who are on the copyright infringement list, and then take them to court for civil copyright infringement.

Ofcom is required to define the standards of evidence required against alleged infringers without which there is a risk that people are wrongly placed on infringement lists and are subject to the civil action. Once the technical means enter into force, all those on the blacklist may face restrictions on their Internet connections and even disconnection. The concern is that Ofcom might not have done enough to set that standard of evidence.

Guy Tritton representing Consumer Focus (covering the interests of those whose details Golden Eye are looking to get hold of) raised a number of concerns amongst which the uncertainty of Golden Eye' evidence (concerns related to which system was used to associate an IP address with the account holder) and the drafting of the letter which does not spell out to the recipients that just because an IP address has been associated with an act, it does not mean the identified subscriber has infringed copyright or authorised others to infringe.

One of the most worrying allegations in the respective letter is that Golden Eye could apply to the ISP to disconnect the subscriber from the Internet. The court gave Golden Eye a week to respond to the expert evidence submitted by Consumer Focus.

Broadband costs set to soar as BT and TalkTalk lose copyright bid (6.03.2012)

Digital Economy Act not in breach of EU laws, Court of Appeal rules (6.03.2012)

Speculative invoicing is back...and why it matters more than ever (8.03.2012)

Speculative invoicing 2: Golden Eye in court (9.03.2012)



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