British ISPs BT and TalkTalk lose appeal on legality of DEA

British internet service providers BT and Talk Talk have lost an appeal over controversial measures to tackle copyright infringement online. The ISPs had argued that the UK's Digital Economy Act (DEA) is incompatible with EU law. The Act will mean ISPs will have to send warning letters to alleged illegal file downloaders, as well as potentially cutting users off.

A spokesman for BT told the BBC: "We have been seeking clarification from the courts that the DEA is consistent with European law, and legally robust in the UK, so that everyone can be confident in how it is implemented. Now that the court has made its decision, we will look at the judgment carefully to understand its implications and consider our next steps."

The ISPs BT and TalkTalk sought a judicial review of sections 3-18 of the Digital Economy Act 2010 (DEA), alleging that the DEA is unlawful and should be overturned. The providers believe some of the DEA’s provisions are incompatible with the Techical Standards Directive, the e-Commerce Directive and the framework of EU law on privacy and data protection.
 
However, the Court of Appeal dismissed most of the arguments brought forward by the ISPs. Interestingly, the ISPs argued that the DEA is in contradiction with the e-commerce directive, because it forecloses the ISPs’ ability to defend themselves with the so-called ‘mere conduit’ exemption - in art. 12 of the said directive, which limits ISP liability for copyright infringements. The ISPs’ also alleged that the DEA de facto imposes a general obligation to monitor data traffic upon the ISPs, circumventing art. 15 of the e-commerce directive. The Court of Appeal made very clear that this is not the case and that the application of the e-commerce directive is not challenged by this national law.
 
The ISP’s complaint that enforcement measures in the DEA are a disproportionate response to online copyright infringement has been dismissed by the court as well.
 
Meanwhile, the creative industry argues that piracy costs £400 million a year in lost revenue and that such a massive display of damage justifies the call on ISPs to take up an active role in copyright enforcement. However, the internet service providers believe stricter measures could result in an invasion of privacy and run up disproportionate costs for both ISPs and consumers. Adam Rendle, a copyright specialist at international law firm Taylor Wessing, said to the BBC that he expected BT and Talk Talk to now appeal to the UK's Supreme Court.
 
Source: BBC