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ISPs Challenge Digital Economy Act

by Robin Pilgrim,, London

09 July 2010

Two of the UK's largest internet service providers (ISPs) have filed papers with the High Court asking for a judicial review of the Digital Economy Act, which contains measures to crack down on illegal file sharing over the internet.

The controversial legislation was rushed through parliament in the 'wash up' session just prior to the May general election and two companies, TalkTalk and BT, want the High Court to look at whether the Act was passed into law without going through the correct parliamentary procedures.

"It’s our belief that this haste meant the Digital Economy Bill, as it then was, became law without being properly scrutinized and without its impact being properly assessed," wrote Charles Dunstone, Chairman of the TalkTalk Group in a blog posting.

The two companies are also concerned that the measures designed to prevent illegal file sharing "could harm the basic rights and freedoms of citizens" and may conflict with European Union laws intended to protect individual privacy in national legislation.

"As a result, we’re seeking clarity from the Court before we and other industry players are asked to implement the Act," Dunstone added. "We want to avoid a situation where we invest tens of millions of pounds in new systems and processes only to find that the Act is unenforceable and the money wasted."

The Digital Economy Act grants the government a power to impose so-called "technical obligations” on ISPs which would require them to take measures to limit internet access to certain subscribers and would include bandwidth capping or shaping and temporary suspension of broadband connections.

ISPs have argued that they are merely 'conduits' for traffic over the internet and are not directly responsible for the content downloaded by their subscribers. But TalkTalk is also protesting against the legislation's potential to violate its customers' privacy and the company has said that it will not disconnect any of its subscribers unless ordered to do so by a judge.

"In our view the previous government’s rushed approach resulted in flawed legislation. Innocent broadband customers will suffer and citizens will have their privacy invaded by this Act," Dunstone stated.

Under a draft code of practice which implements legislative measures contained in the Act, published by the communications regulator Ofcom last month, it is proposed that, initially, only fixed-line ISPs with over 400,000 subscribers will be covered by the legislation. This would mean that the UK's seven largest ISPs – BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office – will be covered by the code from the outset. Obviously, this gives internet users an opportunity to avoid the law by switching to smaller ISPS, another reason why critics of the Act consider it unworkable.

Several Conservative and Liberal Democrat MPs, including current deputy prime minister Nick Clegg, called on the previous Labour government to scrap the legislation prior to the dissolution of Parliament. Now in power, however, the Con/Lib coalition government appears to have no plans to amend or repeal the Act.

"We believe measures are consistent with EU legislation and that there are enough safeguards in place to protect the rights of consumers and ISPs and will continue to work on implementing them," the Department of Business, Innovation and Skills informed the BBC in a statement.

TAGS: court | business | commerce | law | intellectual property | copyright | United Kingdom | enforcement | internet | e-commerce | legislation | penalties

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