BT and TalkTalk v Department for Business, Innovation and Skills

Today rights holders and ISPs turned up at the high court in London for a court case which will determine the legality or otherwise of the Digital Economy Act. There is a sense too in which arguments put the whole concept of graduated response or 3-strikes in the dock and that for the first time we are hearing a reasoned case against 3-strikes.

 In a courtroom divided clearly between the two camps, the case against the DE Act was put by BT's barrister was the first day of a three-day hearing.

 The following account is my personal  view of what was said, having sat through the entire day. I've summarised what I consider to be some of the key points in BT's arguments.

- The nature of an obligation on an ISP, and whether the draft law should have been notifed to the European Commission before being put to Parliament. This question turns on whether or not the DE Act places an obligation on ISPs, and whether this obligation is specified in the DE Act itself, or whether the Act merely enables another secondary mechanism to spell out the obligation. BT's barrister argued that it does create an obligation, which is now irreversible because it is now part of the Statute, and that it should have therefore been notified in draft stage when changes to the obligation would still have been possible.

- The nature of liability in the context of the E-commerce directive and mere conduit. The court was informed about the delicate balance struck by the European Parliament in  2001 when the E-commerce directive was passed, in particular how strong liability regimes such as Notice and Take-down were rejected. A complex argument regarding ‘no general obligation to monitor' was also put forward.

An opinion of the European Data Protection Supervisor regarding ACTA was relied on to address the matter of whether graduated response measures constitute a general  monitoring obligation, and also whether IP addresses are personal data.

- Is the IP address personal data? BT argued that IP addresses are  personal data, the government and the rights-holders appear to be saying that they are  not. The court was then told that given that  IP addresses are personal data, the requirements for processing of this data under Digital Economy Act contravene the E-privacy directive. The court was also told how some of that data is also "sensitive" personal data  - where it can reveal for example, sexual or religious preferences  -  which puts it into a special lega category. Sensitiv

 - What is traffic data? Is the required data under the DE Act considered to be communications  traffic data? Apparently, the BIS lawyers say that it is not. BT explained that the data required to identify the individual subscriber is data which relies on the time and duration of a communication and therefore is traffic data. The government is apparently disputing that it is traffic data although the basis of the government's point is  not clear.

If it is communications traffic data, and if it is covered by the Data Retention directive, then BT can hand over the details of the users if the rights-holders obtain a court order, but may not hand it over without such a court order, - extra-judicially was the word used  by BT's barrister.

- Do the requirements of the Act fall under the ISP's authorisation, in the context of the EU Authorisation directive? This was particularly important in relation to costs - whether or not the government's draft Statutory Instrument on costs is applicable depends on this point. The government is arguing that the DE Act provisions do not fall under the Authorisation directive, but under Article 1.3 of the Framework  directive.

The correct attribution for this article is: Monica Horten (2011) Digital Economy Act Judicial Review  Day 1

  http://www.iptegrity.com 23 March 2011. 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.

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