Digital Economy Act: Judicial Review Revisited
Well, today's1 news is looking somewhat grim. Mr. Justice Kenneth Parker has ruled against British Telecom PLC's and Talk Talk PLC's objections to the Digital Economy Act after a four day hearing and spending, judging by the length of it, most of the intervening month typing up the response, which was published yesterday2
Before I get lost in the nitty-gritty of what appears to have actually happened, I'd just like to register my amusement, and possibly concern, that the3 Royal Wedding has managed to completely obscure this court case, with the original announcement being within days of the acceptance of the original application to the High Court, and the review being published less than a fortnight before the event, with the media caught up in something of a frenzy. In some ways, it'd be nice to think it was deliberate, because then we would at least know that someone in power has realised that people are complaining; however, I don't hold out too much hope from anyone powerful enough to make this happen to actually care that much.
So, back to the point. The important part of the submission was section 49, which was reformulated slightly more verbosely as paragraphs 5 and 6 of the ruling:
5. The Claimants advance five grounds of challenge in respect of the contested provisions. They contend that: i) The provisions constitute a technical regulation and/or a rule on services within the meaning of the Technical Standards Directive (Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ [1998] L No 204, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, OJ [1998] L No 217). The provisions, it is said, should have been notified to the EU Commission in draft, but were not. The provisions are accordingly unenforceable. ii) They are incompatible with certain provisions of the Electronic Commerce Directive ("the E-Commerce Directive") (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L No 178). iii) They are incompatible with certain provisions of the Privacy and Electronic Communications Directive ("the PEC Directive") (Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, OJ [2002] L No 201). iv) They are disproportionate in their impact on ISPs, consumers, business subscribers and public intermediaries. The requirement for the legislation to be proportionate in its impact on ISPs, businesses and consumers is said to be derived from a number of sources, including Articles 7, 8, 11 and 52 of the Charter of Fundamental Rights and/or general principles of EU law, pursuant to Article 6 TEU and the Human Rights Act 1998 and Articles 8 and/or 10 of the European Convention on Human Rights. v) They infringe the Authorisation Directive (Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services OJ [2002] L No 108, as amended by European Parliament and EC Council Directive 2009/140, OJ [2009] L 337). 6. The Claimants also seek to challenge the draft Costs Order on each of grounds 2 to 5 above (the Order having been notified in draft to the EU Commission, ground 1 was not applicable).
Whilst I'm quoting verbatim, the ruling also gave an excellent summary of the powers that might be implemented in the future as discussed the Government's White Paper Digital Britain: Final Report (Cm 7650)
i) The blocking of access to websites, internet protocol ("IP") addresses or to a uniform resource locator (or URL, which is the global address of individual web pages, documents and other resources on the worldwide web); ii) Protocol blocking (preventing certain internet protocols from accessing the internet which can prevent certain internet services being used by a computer); iii) Port blocking (preventing certain ports from accessing the internet, with the same aim as protocol blocking); iv) Bandwidth capping (which reduces the speed at which files might be downloaded); v) Volume capping (restricting the amount of data that may be downloaded over a period of time); vi) Bandwidth shaping (limiting the speed of a subscriber's access to selected protocols or services); vii) Content identification and filtering.
No big surprises there, but always good to know what people are considering. The actual code of practice (for section 124D of the legislation) should have been submitted by Ofcom by the 31st March (if non Ofcom-approved industry standard was put forward before this date), but I can not immediately find reference to one.
The actual judgement goes on for 73 pages, and the rage I had after it was first published has long since been quashed by exams. So, I'll jump straight to the conclusion:
265. In the event, the Claimants succeed only in respect of the claim relating to Article 12 AD ("administrative charges"). They are entitled to appropriate relief on that claim. Formally, I grant permission in respect of the new ground under the AD (ground 5 of the amended claim), but, save for the claim referred to, I dismiss all other claims in this judicial review.
This is, conceivably, the worst outcome possible, as the ISPs have managed to offset the costs that would be raised, whilst secure in the knowledge that no competitors can undercut them in the enforcement stakes. They can wash their hands of it and just continue much as they always have. This didn't stop the spokespeople went through the motions:
Protecting our customers is our number one priority and we will consider our options once we have fully understood the implications for our customers and businesses. This was always about seeking clarity on certain points of law and we have to consider whether this judgment achieves these aims. - BT
We’re disappointed that we were unsuccessful on most of the Judicial Review - TalkTalk
There have, so far, been no real signs of an appeal being formed and, overall, the blow has already been struck with this precedent. Now, we just have to see if they can begin a competent implementation before someone higher up the chain steps in.