BT and Talk Talk lose judicial review of DEA

The judicial review challenge by BT and Talk Talk of the Digital Economy Act (DEA) has been rejected by the High court. The ISPs’ claim that the Act has not received proper parliamentary scrutiny and that its provisions are disproportionate and endanger the privacy of their customers, was rejected by the Judge, Mr Justice Parker. The judge stated that although “individual behaviour [infringements] of this kind may seem trivial and excusable, the general effect may well be very damaging to the creative industries”.

The Court dismissed all the claims put forward by the companies save for the issue of administrative charges even though the Judge agreed that there was a risk of a “chilling effect”, which is where the subscriber who is not the infringer is the subject of a copyright infringement report (CIR) or a Copyright Infringement List (CIL).

The companies have said they will review the judgment and consider the options available to them once the implications for their customers are fully understood.

The outcome of the review is indeed disappointing as its provisions also threaten legitimate sites that are used illegitimately by a few and innocent subscribers, who have fallen victim to internet hijackings. Although it appears one of the reasons the Judge dismissed the claim by the companies, was the lack of any real evidence and the difficulty in determining the extent of a “chilling effect” at this stage.

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