Defending the Digital Economy Act

Will Tovey's picture

This is one of a set of posts detailing the main arguments made in Court during the Judicial Review of the Digital Economy Act - R (on the application of BT and TalkTalk) v Secretary of State for Business, Innovation and Skills. This post covers the third day. A summary of day one can be found here, and day four here.

This morning the judicial review of the Digital Economy Act resumed with the Department of Business, Innovation and Skills defending the Digital Economy Act. Before the arguments got underway, it was agreed that the hearing would spill over to Monday, with the final matters being dealt with then.

The government's arguments included assertions that while the DEA is already in force, it does not yet have any legal effect on individuals or ISPs, and so until it does have an effect, there is little point in reviewing it. Much was made of the claim that the DEA is about protecting the "fundamental human rights" of copyright owners, how the enforcement of copyright was a "core aim" of the European Community, and how copyright itself (as it is today) is "in the public interest."

It was also suggested that if some of the ISPs' claims were true, any scheme like the DEA would necessarily be illegal in the EU, with the consequence that the ISPs must be interpreting EU law incorrectly. There was even a suggestion that if the ISPs were right on one count, this would seriously impact national security and could make it easier for Al-qaeda to "blow up an atomic bomb in London."

On the matter of the proportionality of the DEA (which most of yesterday and a large part of the afternoon was spent on), it was argued that the various Codes established by the Act must be proportional because the Act says they must be. In addition, the government suggested that the ISPs were assuming that the Codes "will be disproportionate" before the Codes had been produced, and so this is the wrong time to test for proportionality.

The Court also discussed (in less detail than on day 2) the justification for the DEA. The judge noted there may have been "elementary howlers in the impact assessment" of the code (discussed by the ISPs on Thursday, and including the assertion that it could lead to a 70% reduction in online infringement of copyright, despite only 37% of infringement occurring through the methods targeted, i.e. P2P protocols) and that there were "different views about the extend of lost sales". To counter this, the government suggested that the legal impact of the Act itself was on trial, not Parliament or their reasons for voting. In any case, it was noted that approving the Act was a "carefully considered and crafted decision" of Parliament, and the Courts should be very cautious when challenging primary legislation, particularly on social and macro-economic issues.

The rest of the afternoon is expected to be spent by the government rebutting the claim (raised on day 1) about the EC Authorisation Directive, after which the barrister representing the copyright industries is expected to begin his submissions. final submissions are likely to be heard on Monday. For more up to date coverage, follow the #deajr tag on Twitter.

Update: The judgment has now been given and is available here. A summary of it can be foundhere.