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Can a court quash the Digital Economy Act ? This is the British law which brings in a version of 3-strikes and it comes to court this week in a unique case.


***The arguments set out in this article are based on the case set out in legal documentation from  BT and TalkTalk. I intend to go to the court tomorrow and will be posting further on this case.***


Tomorrow the British high court will hear the case against the government put by two ISPs, British Telecom and TalkTalk (Carphone Warehouse). There are asking the court to quash the DE Act.  It is possibly the first instance of its kind where a court has been asked to review a law which has been passed by Parliament.

 The Digital Economy Act includes provisions for copyright enforcement measures in respect of peer-to-peer file-sharing and Internet content, which mean that people may be warned, put on blacklists and ultimately have their connection suspended as a punishment.

If the two ISPs  win, the Digital Economy  Act becomes unenforceable and lapses.  BT and Talk Talk will argue that the government

failed to notify the European Commission of the law, which they should have done before it was put to Parliament.


The basis of their case states that the DE Act places specific obligations on the ISPs and as such it regulates the business of Internet Service provision. They assert that it prescribes measures to a level of detail  which cannot be reversed and that it is not, as the government will argue, merely a shell to be filled in later.


Any law which creates new obligations for ISPs must be notified to the European Commission.


BT and Talk Talk are asking for declaratory relief  - that is, they are asking the court to state that the law is, for the  reasons given, unenforceable and  they want   a quashing order, which would stop the government from implementing the DE Act.


Of course, it was the previous Labour government which was responsible for rushing the DE Act into Parliament, and the new coalition government which is now being sued.


Additional claims by BT and Talk Talk assert that the Digital Economy Act contravenes two European laws, namely the E-privacy directive and the E-commerce directive. In particular, they cite the provisions in these laws which regulate interference with private communications, and storage of communications data. They argue that the DE Act breaches the mere conduit provision, which says that ISPs are not liable for content on their networks.


A final claim asserts that the Act is in breach of certain fundamental rights, and relies in a small part on Article 1.3a of the European Framework directive, which was the final agreement of the Telecoms Package.


I am interested to see how the barristers present these arguments in court tomorrow.


A number of  rights-holders have asked to make interventions, as have the trade unions who support them. They are supposed to address the claim as stated by BT and Talk Talk.


The hearing promises to be fun - and I say this with the British sense of irony!


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This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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 (2011) DE Act in court tomorrow for a quashing order 22 March 2011  

Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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