Judicial Review of the Digital Economy Act
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Deutsch: Überprüfung des Digital Economy Act
In July 2010 UK ISPs TalkTalk and BT filed papers seeking a Judicial Review (JR) of the Digital Economy Act, and were then granted a hearing. In the UK, JRs are rare. They can be brought when there is concern that a UK law contradicts over-riding legislation (e.g. European law). They sought the Review on four grounds: that the UK government didn't notify the EU as required under the Technical Standards Directive; that the Act does not comply with e-privacy laws; that the Act does not comply with e-commerce legislation; and that the Act has a "disproportionate" effect on ISPs, businesses and the public. More recently a fifth ground was added, related to the Costs Sharing Order and its consistency with the "Authorisation Directive."
The hearing began on 23 March and finished on 28 March 2011.
The Claimants BT and TalkTalk were joined by Consumer Focus and Article 19, who submitted evidence of the "chilling effect" of the DEAct. EDRi-member Open Rights Group submitted evidence as a "friend of the court", covering primarily the effect on public Wi-Fi provision, the privacy questions, and the weaknesses of IP evidence. As well as legal submissions from Francis Davey, we submitted a witness statement from Jim Killock and an expert report on the technical questions behind a reliance on IP address evidence from Richard Clayton.
The primary Defendant is the Secretary of State for Business, Skills and Industry (ie the Minister in charge of the department that was responsible for the Bill / Act the time of passing). They were joined by the BPI, the British Video Association Limited, Broadcasting Entertainment Cinematograph and Theatre Union, Equity, Film Distributors' Association, the Premier League, the MPA, The Musicians Union, Producers Alliance for Cinema and Television, and Unit.
A full daily summary of the JR hearing is up on our blog. There seemed (to this not-legally-trained observer) to be two key points and one interesting observation. First, that the Defence spent a long time arguing that the substantive powers to which the grounds of the JR should apply are not contained in the Act and will be in the yet-to-be-published final 'Initial Obligations Code'. A key question for the Judge is the extent to which the Act determines the important substantive details concerning the obligations on ISPs and consumers, which would make it possible for the Judge to decide on whether the Act as it stands with or without the IOC is in breach of EU law - or whether in fact it is the IOC that will in effect enact substantive powers.
Second, the judge was very careful in his assessment of the nature of the "proportionality" test he was being asked to consider, and the extent to which he was being asked to make a judgement on the policy judgements that Parliament have made. He seemed to be reluctant to be drawn into a judgement on the accuracy or wisdom of a public policy assessment.
One interesting point is that many of the arguments that policy wonks might think are most important, for example concerning how robust the evidence used to justify the Act is, or the likely benefits of the Act, were seemingly some of the least important in legal terms.
It is very hard indeed to guess which way the Judge will fall. He listened carefully to all arguments. The Judge said that he'll take his time to consider the submissions; we expect (speculation) that this means 6 to 8 weeks from the end of the hearing.
Judicial review of the Digital Economy Act (8.07.2010)
Digital Economy Act 2010 to Face Judicial Review (9.12.2010)
Submission to the Judicial Review of the Digital Economy Act (1.02.2011)
DEA Judicial Review - Day 1 (23.03.2011)
(Contribution by Peter Bradwell - EDRi-member Open Rights Group - UK)