By EDRi

This article is also available in:
Deutsch: [Britisches Berufungsgericht bestätigt Digital Economy Act | https://www.unwatched.org/EDRigram_10.5_Britisches_Berufungsgericht_bestaetigt_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)
http://www.independent.co.uk/news/business/news/broadband-costs-set-to-soar-as-bt-and-talktalk-lose-copyright-bid-7541515.html

Digital Economy Act not in breach of EU laws, Court of Appeal rules
(6.03.2012)
http://www.out-law.com/en/articles/2012/march/digital-economy-act-not-in-breach-of-eu-laws-court-of-appeal-rules/

Speculative invoicing is back…and why it matters more than ever
(8.03.2012)
http://www.openrightsgroup.org/blog/2012/speculative-invoicing-returns

Speculative invoicing 2: Golden Eye in court (9.03.2012)
http://www.openrightsgroup.org/blog/2012/golden-eye-in-court