BT and Talktalk lose in judicial review of Digital Economy Act

BT and Talktalk have lost their case to overturn clauses in the Digital Economy Act (DEA).

In the High Court today, Mr Justice Kenneth Parker, who presided over the judicial review, dismissed the internet service providers' claims that sanctions laid out by the DEA are flawed, raised privacy issues, and could breach European laws.

The only claim he recognised as having merit was the issue of administrative charges. He agreed internet service providers (ISPs) should not have to pay towards some costs of setting up systems such as appeals procedures.

In his judgement he said that if other methods of combating illegal file sharing failed, there had to be specific measures and the DEA was one way to do this.

"Parliament has proceeded on the basis that existing procedures are inadequate and that legislative measures must be specifically directed to, first, educating and, second, inhibiting unlawful copyright infringement at the level where it is occurring, namely, through a huge number of individual decisions.

"For the reasons already given, I find nothing disproportionate in that position," he said.

Both BT and Talktalk , which were granted the judicial review in January expressed their disappointment at the ruling.

But their comments indicate that although this battle may be lost, the war does not appear to be over. Lawyers for both ISPs will now begin picking the judgment apart to see if there is a case for taking the matter to the Court of Appeal or the European Court of Justice. Neither ISP feels the judgment has given the clarity they asked for.

BT said: "This was always about seeking clarity on certain points of law and we have to consider whether this judgment achieves these aims. We are disappointed with the outcome of the judicial review. We are reviewing this long and complex judgement... and we will consider our options once we have fully understood the implications for our customers and businesses."

Talktalk also said it was  "considering" its options, which may include an appeal: "Though we may have lost this particular battle, we will continue fighting to defend our customers' rights against this ill-judged legislation," the ISP said.

A spokesperson for the Department for Culture, Media and Sport said: "We are pleased that the Court has recognised these measures as both lawful and proportionate. The Government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly."

However, Jim Killock, chief executive of the Open Rights Group who has called the DEA a "mess" warned that the Government should not rush into this.

"I am not surprised at the result of the review, but there are still issues that need to be addressed."

One big question concerns the failure by the Government to notify Europe about the legislation, as was believed by BT and Talktalk to be required under the Technical Standards Directive. "Technical" legislation that makes requirements of businesses is meant to be checked by the EU first.

"This has to be addressed otherwise it could be a waste of Government time and money to pass legislation like the DEA and then make changes when Europe says there are problems.

"We may see further delays if appeals are made, because the Government will probably not want to press ahead with something which may yet unravel."

Ofcom, meanwhile, is expected to submit a report to Culture Secretary Jeremy Hunt on wheather web blocking measures will be feasible.