By Josh Halliday.
"Divisive government plans to crackdown on illicit filesharing dealt blow in court – but lawyers say win is just an 'adjunct' to wider campaign against act"
The Digital Economy Act, which has divided creative industries since its first inception, has hit what may turn into a considerable stumbling block.
Following a five-hour hearing at London's high court on Wednesday, Mr Justice Wyn Williams granted a judicial review of the act and its proposals at the behest of two of the UK's largest broadband providers, BT and TalkTalk. The act, which came into force in June, hangs "in a state of limbo" until the February hearing, BT says.
Speaking to the Guardian after the announcement, Andrew Heaney, an executive director at TalkTalk, called the ruling a "three-nil victory". He added that "questions remain" over the implementation of the act, the most contentious aspects of which are due to come into force early next year.
"We wouldn't have put this argument forward if we didn't think there was a case to answer on this, and neither would the government," he said. "But I think the government should seriously consider how it takes this legislation forward.
"The judge is saying there's an arguable case against the implementation [of the act]. He heard both sides and fairly quickly came to the view that there was a case to answer. From that perspective we went into today not knowing what we could have got and we got a good result. I think they call it a good day in court."
Simon Milner, BT's director of group industry policy, said he was "very pleased" with the result, which represents a sizeable dent in the proposals as piloted by Lord Mandelson under the previous Labour government.
"We started this because we thought there was uncertainty about the law and the judge agreed with us. From our point of view this couldn't have gone better," he told the Guardian after the hearing.
The ISPs and the legislation are left "in a state of limbo" until the hearing of the review, expected at the high court in February, Milner said.
"The judge appeared to agree with the the heart of our case, that the last government – not the current administration – rushed this through in a really inappropriate manner given how controversial this was. We think the court will decide because of that, the law is unenforceable so we'll wait to see if we're right."
Asked what BT expects will happen to the legislation during this "state of limbo", Milner replied: "That's not for us to decide, that's for ministers to decide. We do think it would be rather odd for ministers to proceed as if the court case didn't happen today though – that would be a bit of a slap in the face for our customers."
Ofcom has indicated that it will go ahead with planning for the implementation, on the basis that the injunction granted this week is not a repeal, and that it should be ready to implement its work right away if the judicial review sides with the government. But the telecoms heavyweights could apply for an interim injunction on the act, which would stave off any implementation until the results of the judicial review are announced.
Privately, though, lawyers familiar with the proceedings suspect BT and TalkTalk don't rate their chances of an injunction being granted, and that the review is little more than an adjunct to the pair's campaign against the act.
One lawyer told me: "The important thing is that this case keeps going in the background to give a feeling of legal pressure backing the political pressure on the government to change direction over the next few months.
"It could actually detract from that campaigning purpose if they ask for the hearing to be expedited, so I don't suspect they will."
Some rights holders, including the Motion Picture Association (MPA) and the British Phonographic Industry (BPI), suggest BT and TalkTalk's argument around the potential harm to "basic rights and freedoms" of internet users is little more than a ruse to protect their financial interests and market share.
Chris Marcich, managing director of the MPA, said in a punchy statement: "The pursuit of this claim by BT/TalkTalk appears to be an attempt to avoid or delay playing their rightful part in tackling online piracy, and instead to continue maximising profit by continuing to make money from broadband traffic generated in part by the downloading of illegal content taken from rights holders without permission."
The high court will on Friday decide whether BT and TalkTalk have succeeded in challenging the Digital Economy Act on the fourth and final ground. Described by lawyers following the case as "clearly their weakest" point, the ISPs argue that the act goes too far in restricting cross-border services, privacy and free expression.
The government, arguing its best case for legislation harried through by the previous administration, believes it will chalk one back on BT and TalkTalk's "three-nil victory".
