Monday, 12 March 2012

Interview with Joanna Alderson

The Digital Economy Act, that forces internet service providers to help combat illegal file-sharing is lawful, the UK Court of Appeals has ruled. The Court rejected claims made by BT and TalkTalk that parts of the Digital Economy Act violate European Union laws. The ruling has been welcomed by representatives of the creative industries, but may yet be appealed by the two internet service providers to the UK Supreme Court. Michiel Willems spoke to Joanna Alderson, an Associate at Pinsent Masons in Birmingham, to examine the latest ruling.

What is the impact of today’s ruling on businesses and consumers?
This latest ruling effectively shuts another door on the attempts by the two providers to challenge the Digital Economy Act, clearing the way for implementation of the Act. Pending further appeal service providers will now have to play an active role in policing online copyright infringements by their users. Illegal file sharers will no longer be entitled to rely on the anonymity that the internet provides and will be subject to the ‘three strikes rule’ but this is still a long way from an obligation to monitor users' surfing.  

Should the latest ruling be seen as a victory for the creative industry?
The creative industry is certainly claiming the victory from the ruling and it does pave the way for the implementation of the Digital Economy Act. However, implementation will be a lengthy and complicated exercise and we have not seen a proposed timetable for this. How the Act will be implemented, policed and enforced remains to be seen.

BT and Talk Talk had argued that the Digital Economy Act breaches European laws on data protection and privacy, but the Court has dismissed this. What can you say about this?

Data protection and privacy laws permit disclosure of personal data - even sensitive personal data - where disclosure is required to establish, enforce or defend legal rights, under the UK interpretation. This exception necessarily has to include enforcement at a pre-action stage to enable the identification of potential defendants, even if action results in early resolution, as encouraged by the courts.

BT and Talk Talk also failed to convince the Court that the Act was ‘incompatible’ with provisions set out in the European E-Commerce Directive. What can you say about this?
The E-Commerce Directive was designed to ensure that the internet functioned efficiently. All parties in the communication chain are given certain protections from liability where acts complained of are outside their control. However, the E-Commerce Directive is written in a way to balance many competing interests. On the one hand providers are protected to the extent they have no knowledge of infringing acts but when in receipt of knowledge the level of protection changes - this has always been the case.

In a judicial review last year the High Court had rejected BT and Talk Talk's claims that parts of the law violate European legislation; now the Court of Appeals has confirmed this view. How likely is it that the Supreme Court will rule otherwise, do you think?
The service providers are said to be ‘considering their options’ in light of the ruling but it is felt that they have little option but to have one final go at forcing a rethink of the controversial provisions of the Digital Economy Act, by appealing to the Supreme Court. If an appeal is permitted, it will be interesting to see the grounds of any further appeal, particularly as the Court of Appeal appeared to have little difficulty in substantially upholding the first instance decision. The providers will not be able to raise any new or additional arguments on appeal. Further, appeals to the Supreme Court must show that there is a real public interest in the outcome of the case.

Anything else you would like to share with me?
It is understandable that internet service providers are throwing everything they can at challenging this legislation, which will have serious implications on the role of an internet service provider in policing online copyright infringement. Some providers have been quoted saying they will refuse to comply with the new legislation. Even if the Supreme Court does follow suit, we expect to see much more legislation relating to this controversial Act in the future.

Michiel Willems © 2012 CP Publishing Ltd. London, UK. Picture: Pinsent Masons