Judicial Review of the Digital Economy Act

By EDRi · April 6, 2011

This article is also available in:
Deutsch: [Überprüfung des Digital Economy Act | http://www.unwatched.org/EDRigram_9.7_Ueberpruefung_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

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)