Refusal of the application for JR of the DEA

Today, the judgment from the High Court came through refusing the application of BT and TalkTalk for judicial review of the Digital Economy Act 2010 (R on the application of BT and Talk Talk v Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) - read it here). A little background first: the Digital Economy Act, pushed through by the last government in its dying days with little thought or Parliamentary scrutiny, is an attempt to 

“make provision about the online infringement of copyright and about penalties for infringement of copyright and performers' rights”

Amongst a variety of other miscellaneous provisions.



It allows for copyright holders (read: record labels) to demand information from internet service providers about their customers who they, the copyright holders, allege have infringed their copyright, as well as obliging ISPs to send informative notices to the subscribers in question. It also makes provision for the possibility of a “technical obligations code” which could force ISPs to impose “technical measures” against their subscribers. Section 9, paragraph 3 states:

“(3) A “technical measure” is a measure that—

1. limits the speed or other capacity of the service provided to a subscriber; 
2. prevents a subscriber from using the service to gain access to particular material, or limits such use;
3. suspends the service provided to a subscriber; or
4. limits the service provided to a subscriber in another way.”

Although there are various checks and balances imposed such as a minimum delay and rights of appeal, the thrust is that copyright holders will be able to, by asking the Secretary of State to engage an ISP’s technical obligations, impair the user’s internet connection either by reducing speed or blocking certain websites. Therefore, it is of the utmost importance that this Act is properly balanced and takes into account the interests not only of copyright holders and ISPs, but also individuals. 

The application for judicial review from BT and TalkTalk focused on several EU directives which they claimed the DEA breached, both in procedure and substance. The most important submission, however, relates not to the EU aspect, but to proportionality; although Parker J admits that some of the research and assumptions upon which the DEA was based are flawed, the claim is rejected on the grounds that Parliament was entitled to assume that they were sound. 

The two major assumptions, which provide the justification for the obligation to send notice to customers, are that “70 per cent of infringers would stop file sharing once and for all upon receiving a single notification from their ISP” and that this 70% drop in infringers translated to a “55 per cent reduction in infringement”. These figures were quoted in the Government’s own ‘Impact Assessment’ conducted before the drafting of the bill. 

These two figures are seriously questionable. Parker J himself notes that the first figure is taken from a 2008 study which, when repeated in 2009, gave a figure of a 33% drop instead of a 70% one, as the surveyed filesharers were informed that the notice they were given would contain no specific threat. Since the type of ‘notice’ that regulations under the DEA would oblige ISPs to give would, in fact, contain no specific threat, it seems that Parliament was not entitled to assume that the 70% figure was sound, or at the very least, should have been informed about the revised figure during the debate for the bill. This would clearly have affected the benefit-cost balance. Even assuming the 70% figure is sound, the translation of this into a “55 per cent reduction in infringement” seems at best highly dubious and at worst like a number pulled out of thin air. Neither of these figures, it has to be noted, include reference to any type of illegal filesharing outside of peer-to-peer networks; I assume this means that they only count the effect on torrenting, and completely ignore all those people who share via IRC, direct download, usenet, or usb stick. BT and TalkTalk cite research which shows that “less than 40 per cent (in fact, about 37 per cent) of online copyright infringement was due to P2P file sharing”. Therefore, regulations under the DEA would affect 33% of the users of a method which is only responsible for 37% of infringements. 

I will post about the failings of the DEA as a whole later on, but - skating over all the EU points - it seems to me that there is clearly a case for JR here, and that the draftsmen - and Parliament - based their conclusions on figures which do not really stand up to scrutiny. I hope it gets through on appeal.