UK ISPs Already Taking The Digital Economy Act To Court

from the is-it-legit? dept

BT and TalkTalk, two UK ISPs who had been critics of the Digital Economy Act all along, are now going to court to find out if it’s legal, before they go through the hassle of implementing any of the provisions. They’re apparently claiming that the law was passed with “insufficient scrutiny,” and that the implementation rules coming out of Ofcom put them at a disadvantage competitively. While both of those things are true, it’s not clear that this makes the law invalid. It would certainly be nice if the courts ruled it invalid, but it also seems like a long shot.

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Companies: bt, talktalk

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Comments on “UK ISPs Already Taking The Digital Economy Act To Court”

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17 Comments
Alatar says:

In the meantime, in France

If only we could have the same ISPs here in France…

France’s “Hadopi” law is worse than the DeBill (interesting thing : “debile” in french means something like “retarded”).
And no ISP dared lift a finger. Well, the 2nd biggest ISP, Free, was being threatened by Sarkozy (“if you dare oppose that, I will make sure you never get the license to become a mobile operator while all your ISP competitors are”) and now it has its license, is starting to oppose, but except them, neither SFR, Orange or Bouygues (all of them ISPs and mobile operators) found anything to say about that.

Hephaestus (profile) says:

Re: EU law

“It’s not just procedural issues: TalkTalk and BT are also claiming that the DEAct is incompatible with EU law. That *would* make it invalid if a judge were to agree.”

A couple months back I sent the top 50 European ISP’s ( TalkTalk and BT were included) a 30 page extended version of this comment (see below). Recently I sent the same analysis to several Irish ISP’s that have pressured into implementing 3 strikes. When the DEA is struck down in the EU courts it will remove all possibility of ACTA ever being signed into law in any member nation of the EU. It will permanantly remove 3 strikes and any sort of bandwidth throttling from the table in the EU. It will isolate the USA from the EU IP wise and force all future IP changes to go through the WIPO (wikipedia) (WIPO site).

Hephaestus (profile) says:

Re: EU law

“It’s not just procedural issues: TalkTalk and BT are also claiming that the DEAct is incompatible with EU law. That *would* make it invalid if a judge were to agree.”

A couple months back I sent the top 50 European ISP’s ( TalkTalk and BT were included) a 30 page extended version of this comment (see below). Recently I sent the same analysis to several Irish ISP’s that have pressured into implementing 3 strikes. When the DEA is struck down in the EU courts it will remove all possibility of ACTA ever being signed into law in any member nation of the EU. It will permanantly remove 3 strikes and any sort of bandwidth throttling from the table in the EU. It will isolate the USA from the EU IP wise and force all future IP changes to go through the WIPO (wikipedia) (WIPO site). Since the WIPO has become more consumer friendly in recent years it puts a wall in place preventing this sort of IP maximalist crap in the future.

————————————————–
Original post follows
————————————————–

“they will likely change their tune when they start spending more on laywers every day.”

They can probably go before an EU court on a point by point basis. Each request that comes in go before a judge with a different violation of what ever passes for a constitution in the UK, and also how it violate EU law. Being a layman I can see 18 violation of EU and UK law, there are probably alot more.

The new Internet Freedom Provision of the EU Telecoms Reform states.

“Any of these measures regarding end-users? access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.?”

Just read that one section and you find 7 different ways to fight this in the EU court.

1) principle of presumption of innocence
2) the right to privacy
3) A prior fair and impartial procedure shall be guaranteed
4) the right to be heard
5) effective judicial protection
6) due process
7) their implementation shall be subject to adequate procedural safeguards

Then you also have the fundamental rights issue …

CHARTER OF FUNDAMENTAL RIGHTS
OF THE EUROPEAN UNION (applicable sections)

Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to
data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.

Article 11
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers.

Article 13
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Article 36
Access to services of general economic interest
The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.

Article 38
Consumer protection
Union policies shall ensure a high level of consumer protection.

Article 41
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
— the right of every person to be heard, before any individual measure which would affect him or her
adversely is taken;
— the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
— the obligation of the administration to give reasons for its decisions.
3.Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

Hephaestus (profile) says:

Re: Re:

“Here’s to the UK courts doing the right thing.”

Its the EU courts that will decide this not the UK courts. Thats why the Department of Business, Innovation and Skills said “We believe measures are consistent with EU legislation and that there are enough safeguards in place to protect the rights of consumers and ISPs and will continue to work on implementing them.” Which I am assuming comes from Ed Vaizey MP who is in charge of implementing the DEA in the UK.

I hope that clears up any confusion 😉

Anonymous Coward says:

There was a huge reason why everyone in the great British Empire fought for freedom from them. The Brits are idiots and have no clue about the real world. They always have and still do live in a cocoon. Their human rights abuses around the world are legion and Britain is the reason there is currently a problem in the middle east.
If Britain would have given Palestine back to the Palestinians instead of giving it to the Jews who had already lost their lands being the war-mongers they are. We wouldn’t have all the bad feelings in the rest of the Arab countries.
Britain finally admitted publicly and then apologized about one of their atrocities, ‘Bloody Sunday’. These people do not operate in any logical manner that the rest of the world understands, so their laws are only to be looked upon as quaint and to be stomped out when they start to affect the rest of the world.
Pretty soon we will have to buy our entertainment in the country we are currently in, even if it means owning multiple copies of the works. The draconian copyright laws change so much from country to country that we will be breaking the law simply by bringing a movie from home. Inevitably it will be missing a stamp or something that a country requires and you can be singled out if not for punishment then for reprimand.
I don’t know about the rest of the world but I personally want to see less officials rather than more. Less Cops, Less Border Patrols, Less Paid enforcers. Please just leave me alone and let me live in some simulation of freedom. Even if it is only in my mind.

Richard (profile) says:

Re: Re:

There was a huge reason why everyone in the great British Empire fought for freedom from them.

Yup – and the reason was that along with empire we brought education – which then undermined the empire.

The exception to this was the US – who were a bunch of freeloaders who were trying to avoid paying for wars fought on their behalf – without which the US would have been unable to expand on it’s western border and would have ended up as a much smaller country surrounded by other european colonies.

fred says:

Many of the Lords in the house of lords and many MPs were against the Digital Economy Bill, but it was rushed through parliament in the last hours of a failing government. The new Government must at least re debate this obscene bill.

It is shocking to note that only 240 MPs bothered to vote at all but that only approx 25 MPs took part in any debate. this out of a House which has 650 MPs. Every one of the LibDems who voted, voted against it. Only 4 conservatives voted for it out of the 9 who bothered to turn up. over 98 % of all votes for the bill were LABOUR

http://www.libdemvoice.org/the-digital-economy-bill-saints-the-mps-who-voted-against-labours-internet-freedom-clampdown-debill-18757.html

Quote
Of the 189 Aye votes, I make it 185 Labour and 4 Conservatives. Plus the two tellers were Labour.

Of the 47 Noe votes, I make it 23 Labour rebels, 16 Lib Dems, 5 Conservatives and 3 others (DUP, PC, Ind). Plus the two tellers were Lib Dem.

In total 240 MPs took part in the vote: 98% of MPs who voted for the Digital Economy Bill were Labour MPs.

The opposition to the Bill comprised 49 MPs (including the two tellers). As a percentage of the major parties representation in the House of Commons that means:

29% of all Lib Dem MPs voted against the Bill (100% of those present);

6% of all Labour MPs voted against the Bill (11% of those present); and
3% of all Tory MPs voted against the Bill (56% of those present).

This Bill has made a mockery of the Parliamentary system and must be repealed in order for it to be debated properly and a proper vote to take place

Dave says:

DEB

I wrote to my MP, not about the actual content of the bill, but expressing concern about the way it was being pushed through the “wash-up” process at the end of parliament. All I got back was a load of waffle about photographers’ copyrights (not even remotely close to referring to what I had written) and it seems that when it came to the vote, he must have decided that he had better things to do, as he didn’t turn up. So much for our officially and democratically elected peoples’ representative.

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