Thursday, April 21, 2011

Judicial Review of Digital Economy Act rejected

BT and Talk Talk had their application for Judicial Review of the DEA rejected by Mr Justice Kenneth Parker on 4 of the 5 claims raised (the review of administrative charges was granted). This is a great outcome for the creative industries.

BT and Talk Talk had thrown everything at this including the Human Rights Act and the European Convention on Human Rights. In a lengthy and entertaining judgement Mr Justice Kenneth Parker was drawn to describe the leading counsel for BT and Talk Talk, Antony White QC as "hoist by his own petard".

Much of the discussion was very technical on the subject of whether the DEA is in line with European Legislation but some key extracts of the judgement are below;

"In the present context, the essential function of the ISP is not to investigate facts or circumstances, but to identify the wrongdoer. If a police officer
observes a motor car passing through a red light, and asks an official at the vehicle licensing authority to disclose the name and address of the registered keeper (and presumed driver) of the car, that official, in responding, would not actively be “seeking facts or circumstances indicating illegal activity”. She would be doing no more than identifying, in response to a specific request, the person who, according to the investigation already completed by the police officer, had infringed the traffic code."

On the question of the identification of the end user

"However, as Mr White submitted, the data nonetheless relates to an identified or identifiable person because the subscriber, who can be identified through the dynamic IP address, is inevitably linked to the data (the particulars of the copyright infringement, including the dynamic IP address) as the person who, in a broad sense, has facilitated the infringement, even if he is not the infringer and could incur no legal liability for the infringement. The same point was made in respect of special data under Article 8, but the answer is the same: an identified or identifiable person (the subscriber) is inevitably linked, through the dynamic IP address, to material that might, for example, tend to show unusual sexual proclivities. It does not seem to me to be sufficient to show that the subscriber might not be the person who putatively has such proclivities, where the relevant link was to the subscriber’s internet access, and the inference would be that he was either a person who has permitted access to someone with such proclivities or has them himself. It was also argued that, even if the subscriber had downloaded such material, it would be unsafe to assume that the subscriber had the characteristics that the downloaded material tended to show. It is true that a particular subscriber might be downloading copyrighted pornographic images for the purposes of scholarly research into the efficacy (or lack thereof) of the Obscene Publications Act 1959, but in the real world the inference, whether or not accurate, would tend to be less favourable."

On the DEA in general

"The DEA proceeds on the premise, first, that a significant number of infringers do not at the moment fully appreciate that what they are doing seriously infringes the legal and moral rights of others and that, although individual behaviour of this kind may seem trivial and excusable, the general effect may well be very damaging to the creative industries, a notorious example of what is sometimes called the tyranny of small decisions that have ruinous economic consequences. A central purpose of the contested measures is educational: through systematic CIRs the recipient will be better informed about the nature of his conduct and of the likely consequences for others, and he may be disposed to cease, or at least to modify, such conduct. He may be persuaded to do so, even if it is contrary to his immediate interests: the days when it was assumed that consumers act only out of the pursuit of economic self interest, and do not, quite rationally, respond to moral, altruistic or longer term considerations, are long gone. Furthermore, insofar as the contested provisions improve the efficiency and effectiveness of copyright protection (see above), the risks attached to persistent infringing are raised: even if the selfish, determined infringer were minded to seek to evade detection, he might not be sure that technical means existed or were being developed to thwart him, and he might fear that, if he was detected, the new arrangements would be more likely to expose him to painful enforcement measures. Although it is difficult to predict the effect of measures such as those contemplated by the DEA, there are reasons for believing that such measures may well have positive effect."