The controversial UK Digital Economy Act (DEA) is not incompatible with European Union legislation, the UK Court of Appeals in London has ruled. British internet service providers BT and Talk Talk have lost an appeal about those parts of the DEA that force ISPs to combat copyright infringements. Both internet providers had argued parts of the law are in conflict with European Union legislation, especially in relation to privacy and data protection issues. Talk Talk said in a statement it was ‘disappointed’ and the company is ‘considering [its] options’. It made clear that ‘though we have lost this appeal, we will continue fighting to defend our customers' rights against this ill-judged legislation’. A Spokesman for BT said “now that the court has made its decision” the company will look at the judgment “to carefully understand its implications and consider our next steps".
Joanna Alderson, an Associate at Pinsent Masons in London, said the latest ruling “shuts another door”, while Burges Salmon Partner Andrew Tibber thinks that the decision “gives a further impetus to the growing fight back against digital piracy”.since the Judge “has confirmed the legitimacy and enforceability of the online infringement of copyright provisions [of the DEA] are in line with European legislation”.
"The government will soon be forced to show its hand.”
Natalie Elsborg, a of Charles Russell, expects the ruling to have political implications: “An important effect of the judgment is that it is one more step in forcing the government to get off the fence and decide whether it is supporting the grossly unpopular [DEA]”, she said. “So far the coalition has let events play out and waited to see the approach taken by the courts, but with one fewer court left available to the businesses challenging the Act, the government will soon be forced to show its hand.”
Under the DEA, service providers are forced to send warning letters to users who have allegedly downloaded illegal files – such as Hollywood blockbusters and music. If warnings are ignored, ISPs will potentially cut users off. Both ISPs had argued such strict measures could potentially result in an invasion of privacy and could lead to enormous costs for ISPs as well as consumers. “The prospect of ISPs sending warning letters to subscribers suspected of file-sharing at the behest of rights holders is now one step closer”, said Tibber. “First notifications could be arriving in subscriber's inboxes in just over a year." "All users are to be presumed guilty by association.”
Alderson remarked that “illegal file sharers will no longer be entitled to rely on the anonymity that the internet provides”, while Elsborg believes that under the DEA “it appears that all internet users are to be presumed guilty by association”. She explains: “[The DEA] will force users to take greater responsibility for monitoring activity in their own home. The data gathered by ISPs to establish a list of infringers may be limited to IP addresses, but it cannot identify whether the infringing download was made by the owner of the account or his teenage son from a wireless connection in his bedroom.”
BT has warned the strict measures could lead to enormous costs for consumers. Therefore, Elsborg fears “this decision will result in an increase in broadband fees. It remains to be seen whether the service providers will pass on the cost of investigating and dealing with users misusing their internet account to all users whether or not they are themselves guilty of such actions.”
Michiel Willems © EFPLP - 2011-2012 CP Publishing Ltd. London, UK. Pictures: (top) British Telecom/Talk Talk and (above) enterpriseofgreeks.blogspot.con
