Updated Senior judges are to review the Digital Economy Act following a complaint from BT and TalkTalk that it was rushed through Parliament before the election.
The pair's application for a judicial review, filed at the High Court in July, was granted today. The review is likely to at least delay the Act's anti-unlawful filesharing regime, which is due to come into force in January.
In particular, they claim measures in the new legislation designed to reduce copyright infringement via filesharing networks violate European rules including those on privacy and an ISP's role as "mere conduit".
"We are very pleased that the Court has recognised that our concerns about the copyright infringement provisions in the Digital Economy Act should be considered in a full hearing," TalkTalk regulation chief Andrew Heaney said in a statement.
"The Act was rushed through Parliament in the 'wash-up' with only 6 per cent of MPs attending the brief debate and has very serious flaws."
"The provisions to try to reduce illegal filesharing are unfair, won’t work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded."
Ofcom is currently finalising arrangements under the Act for ISPs to take action against customers accused of unlawful filesharing by rights holders. They will be compelled to write to those observed infringing copyright to warn them they are breaking the law.
If this regime fails to significantly cut unlawful filsharing, further provisions of the Act will be triggered that compel ISPs to restrict services to persistent copyright infringers.
"We look forward to the hearing to properly assess whether the Act is legal and justifiable and so ensure that all parties have certainty on the law before proceeding," Heaney said. ®
The BPI sent this reaction: "Rights holders, ISPs and government all agree that urgent action is needed to tackle online copyright infringement.
"Parliament enacted the Digital Economy Act to encourage innovation on the internet and to protect jobs in the creative industries, which are a key area of growth for the economy. It's disappointing that a couple of ISPs are trying to frustrate this and resist any action being taken to reduce illegal filesharing on their networks.
"All that the court has done today is to allow BT and Talk Talk's legal challenge to go to a full hearing. We continue to believe that their case is misconceived and will fail. The Act remains in full force and we will continue to work with Government, Ofcom and other stakeholders to implement it."