BT and TalkTalk v Department for Business, Innovation and Skills
BT - "You cannot justify national measures on the optimistic hope that they might just work.".
**This report is my own view, having spent the day in court.**
On day 2 of the court case at the High Court in London which will determine the legality of the Digital Economy Act, BT tackled the arguments against the DE Act regarding the dis-proportionality of the copyright enforcement measures.
BT argued that the measures address only a fraction of the problem which they claim to solve, are based on a flawed calculation of their effectiveness, based on a false set of assumptions. In particular, BT sought to ‘put a cricket ball through the stump of the government's cost /benefit analysis'. Moreover, BT suggested that the government misconstrued one of its main justifications for the Bill.
BT claims that the government gave out a misconceivedjustification for the Bill. The court heard how the Digital Economy Bill was justified by the then Labour government on the basis that it was not possible to identify those people who had infringed copyright more than once, and to distinguish them from one-off downloaders, for the purposes of taking court action. The government had, according to BT, stated this repeatedly in documentation that the Digital Economy Act was required for the specific purpose of identifying ‘repeat infringers'.
BT informed the court that ‘this identified need is illusory'. There is alternative method which enables ‘repeat infringers' to be identified and for the rights-holders to obtain, via a court process, their identities. This uses the established Norwich Pharmacal procedure, for which an adapted version of the court order has been drawn up. This procedure does more or less the same job as the Digital Economy Act is designed to do, and does not cost industry or the State any extra money, BT argued.
BT suggested that this evidence cuts a hole in the government's case. According to BT, the government has not responded on this point.
There is therefore, according to BT, no need for the Digital Economy Act, and indeed, on this basis, the DE Act imposes an unreasonable burden on the ISPs, which they will of course have to pass on to consumers.
BT told the court that it is receiving requests from rights-holders for as many as 25,000 user details at a time.
BT placed a serious challenge to the government's target of reducing online copyright infringement by 70%. The DE Act primarily addresses P2P file-sharing. The target fell flat straight away when it was illustrated that only 40% of all alleged infringements are via P2P . Moreover, BT cited the arguments - well known in the user commnity but perhaps less known in the legal community - of how easy it will be for determined users to find alternative methods to download or distributec copyrighted material, and thus render the DE Act measures useless.
BT finished off this line of argument by stating that the government has not challenged this evidence, and that the government appears to be simply hoping that the measures will successs.
" You cannot justify legislation which places restrictions on both the right to provide services, and Article 8 of the (ECHR) on that basis. You have to show that it will be proportionate and appropriate" the court was told.
There was quite a long technical discussion on proportionality. The judge several times in the case so far has raised questions about what it is he is being asked to balance. Is it the right to property vs the right to services?
BT spent some time arguing the ‘chillling effect' of the measures, citing evidence from the Open Rights Group and a joint submission by consumer Focus and Article 19. BT argued that whilst the government apparently acknowleges the existence of some level of chilling effect, it did not take this into account when assessing the proportionality of the DE Act.
One already gets the feeling already that this one could be kicked upstairs - either to the Supreme Court or to the European Court of Justice. The judge commented on a previous case where the presiding judge had declared that it was impossible to for a court to make a determination on issues which concerned the balancing of societal ethics.
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.