The High Courts acceptance of the fourth ground of Judicial Review Case

Last month when the High Court had granted an application for Judicial Review on the Digital Economy Act 2010, they did so under three of the four grounds claimed by BT and TalkTalk. Both of the Internet service providers had felt that the Act was ‘illegal and disproportionate’.

Early in November 2010, the following grounds had been accepted by the High Court in the application for Judicial Review:

The Government failed to notify the European Commission as required by the Technical Standards Directive (European Parliament Directive 98/34/EC) in relation to any new rules that would be applicable to Information Society Services. Both providers argue that as they offer these services and that the Act proposes rules in relation to these services, then the European Commission should have been notified. The notification would have ensured that the Commission was able to carry out duties in relation to ensuring that new rules did not affect trade between member states

The provisions outlined in the Act are not compatible with the E-Commerce Directive (European Parliament Directive 2000/31/EC), which states that the Internet Service Providers cannot be liable for the traffic through their networks. The Act provides provisions to enable Internet Service Provider’s to be fined for non-compliance. Both providers feel that they are protected from financial liability by the Directive

There is also no compatibility with the Privacy and Electronic Communications Directive (European Parliament Directive 2002/58/EC), which states that the data handled by Internet Service Providers can only be processed in specific circumstances, to which the provisions of the Act does not fall under.

Furthermore, the Act requires ISPs to retain certain data, which will contravene the Directive.

The High Court had delayed in deciding the fourth ground: that the impact of the provisions in the Act will have a disproportionate effect on consumers. Both providers are claiming that the limited benefits provided by the Act do not justify restrictions on the right to free expression and privacy.

The High Court has not accepted the fourth ground and should reach a decision on the matter of Judicial Review in February 2011.

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