Two of the six largest Internet Service Providers in the UK are mounting a legal challenge the 3-strikes law known as the Digital Economy Act (DE Act for short).
TalkTalk, which has been consistent in its opposition to the DE Act, and BT, which has previously not taken action, have combined forces to file papers in the High court. They are asking for a judicial review of the DE Act, which they claim failed to follow the correct legal procedures in respect of EU law. They do not specify the names of the directives, but they would appear to be referring to
the E-privacy directive, and E-commerce directive, and I think, the Telecoms Package final outcome in the Framework directive.
Their concern is that ISPs will have to spend millions of pounds on new infrastructure for a law which is ultimately unworkable and which will infringe the civil liberties of UK citizens.
Charles Dunstone, Chairman, TalkTalk Group, said that the rushed process to get the DE Act through Parliament before 6 April had resulted in flawed legislation. He pointed out that the DE Ace is to of the list of laws which the British public wanted repealed by the new coalition government.
Mr Dunstone said in their joint written statement that "The Digital Economy Act's measures will cost the UK hundreds of millions and many people believe they are unfair, unwarranted and won't work. So it's no surprise that in Nick Clegg's call for laws to repeal, this Act is top of the public's ‘wish list'. Innocent broadband customers will suffer and citizens will have their privacy invaded. We think the previous Government's rushed approach resulted in flawed legislation. That's why we need a judicial review by the High Court as quickly as possible before lots of money is spent on implementation."
The response of the British recorded music industry (BPI) as reported in the Financial Times , was to accuse the ISPs of trying to protect their profits.
There is not much more information available about the legal challenge. Out-law , which is run by the law firm Pinsent Masons, cautions that once a law has been passed by Parliament, there is little that a court can do - and the court does not have the power to overturn it.
However, Pinsent Masons say that a court may rule that a law in breach of certain obligations and force a Parliamentary review.
It is to be presumed that this is what TalkTalk and BT are aiming for.
The outcome of the judicial review will have ramifications for other EU member states where legislative or so-called "voluntary" 3-strikes/graduated response measures are proposed.
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This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) UK ISPs demand judicial review of 3-strikes law , http://www.iptegrity.com 8 July 2010 .