The two major internet service providers are bringing the matter to the High Court in efforts to get a judicial review of the legality and fairness of the controversial Act.
The ISPs believe the Act was “rushed through” and told the BBC that it gives smaller ISPs an unfair advantage in the situation, since only providers with more 400,000 customers are subject to the rules. This will mean copyright infringers will simply leave the larger ISPs to avoid detection with the smaller unmonitored ones, BT and TalkTalk claimed.
The Act includes new requirements for ISPs to cut off the internet connections of suspected illegal downloaders after a three-strikes system of warnings, a hotly opposed suggestion that has already come into force in some other countries, including Ireland.
BT and TalkTalk have even gone so far as to say that the Act contradicts EU directives on the nature of ISPs, which state that they are not responsible for how people use the internet connections they provide. Indeed, no one blames an ISP or forces them to do something if someone plots a terrorist attack on a website, downloads child pornography, or performs some other illegal act online.
Forcing ISPs to cut the internet connections of its customers amounts to getting them to shoot themselves in the foot, since it is dependant on providing those customers with an internet connection to survive as a business. This is the argument the ISPs are using against the Act.
TechEye spoke to Ofcom, the UK telecommunications regulator, about the BT and TalkTalk legal challenge. We asked if it would do anything to better accomodate the ISPs’ concerns and it said: “We have an open consultation on the proposed Code of Practice and we will continue to follow our plan for implementation unless otherwise advised by Government.” In other words, the plan goes full steam ahead unless Cameron steps in, which seems unlikely.
The Act itself is being brought in by the Department for Business, Innovation, and Skills (BIS). We spoke to a BIS spokesperson, who told us: “The Digital Economy Act sets out to protect our creative economy from the continued threat of online copyright infringement, which industry estimates costs the creative industries, including creators, £400m per year. 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 Open Rights Group (ORG), however, strongly disagrees. It said: “News that TalkTalk and BT are challenging the Digital Economy Act in court is extremely welcome. It is a vindication of our view that the legislation should not have been rammed through parliament in the dying days of the last government.”
The ORG said that the government ignored the fact that “EU legislation requires that the Commission be given three months to ensure that ‘technical’ legislation complies with relevant EU laws.” It said that IP addresses have been identifed by the Information Comissioner as “personal data” and thus the identification of ISP subscribers on this basis constitutes an invasion of privacy.
If the BT and TalkTalk legal actions taken today are unsuccessful, they may bring the matter to the EU, since the Act appears to fundamentally contradict European laws.