UK High Court to review Digital Economy Act: 1-0 for ISPs

Britain’s two largest ISPs, BT and TalkTalk, have persuaded the High Court to review the controversial Digital Economy Act, that, amongst other topics, deals with tackling illegal file-sharing. The high judges will look into the Act to see if it complies with European Law in Februari 2011. Until their verdict is in, implementation of the Act is postponed.

BT and TalkTalk posed their legal challenge of the Act last July. ISPs are not amongst the Act’s biggest fans. In enforcing it, they have been appointed key players by having to forward letters that Ofcom, Britain’s telecoms authority that is primarily responsible for enforcing the Act, sends to alleged file sharers. This not only places a burden of cost on the ISPs, it also forces ISPs to put their reputation at stake by acting against their customers.

Ofcom has yet to present their definitive plan for tackling file-sharing. They are expected to reveal it before year’s end. In May, the telecoms authority revealed a draft for consultation. In their draft, Ofcom proposed a “mild” version of the three strikes regime, where ISPs send alleged downloaders three warning letters. If they refuse to change their behaviour, the ISPs would be required to reveal the identities of the recipients to rights holders so they could seek legal action.

BT and TalkTalk raised four points that they felt should be better examined: whether the law is in accordance with the European e-Commerce directive, with the European directive for data protection, whether the European Commission had enough time to respond to the act and whether the act sanctions the offence proportionally. The judge ruled in the favour of the ISPs in three of the points. Only regarding proportionality, the judge still needs to rule. This verdict is expected later this week.

Ofcom lets The Guardian know to continue to prepare implementing the DEA. If the court should rule in favour of the government, Ofcom aims to be able to implement straight away.