Digital Economy Act, Judicial Review, Day 3  - Friday 25 March

 

The High Court in London was told last week that  a chilling effect is "a price properly to be paid for the greater aim of protecting copyright owners interests" as the British government's barrister defended the Digital Economy Act against  claims by BT and Talk Talk that the Act is  unenforceable and disproportionate.

 A key tenet of the government's defence  was the rights of copyright owners represent a legitmate aim for legislation and come before other rights, such as those of ISPs or Internet users.

It was the third day of  a hearing which forms part of a Judicial Review of the DE Act. On Days 1 and 2,  BT and Talk Talk had  set out their grounds supporting their claim, including that the government failed to notify the DEAct to the European Commission prior to putting it before Parliament, that it breaches the E-commerce directive and the E-privacy directive, and  that it has implications for freedom of expression, including an anticipated ‘chilling effect' ( see previous articles on iptegrity).

The government's barrister took less

time than BT's, and on several occasions passed over BT's more technical argumentation, rather he was seeking sharper ripostes which were intented do demolish BT's case:  ‘What I am after are knock-out blows' he said on one occasion.

 

The government's case as put to the court was that the objective of the DE Act was protection of copyright, and that such protection is in the public interest. He dismissed BT's arguments on costs and statistical calculations on the basis that there were ‘broader aims' of the Act which were justifiable.

 

In response to BT's attack on the government's Impact Assessment, the government did not defend it, but did admit that it could be re-worked to reflect new information.

 

The government did not accept BT's argument regarding notification to the Commission, claiming that the obligations outlined by BT do not yet have legal effect. They are not  specified in the DE Act  and therefore cannot be assessed by the Commission or anyone else. The judge, Mr Justice Parker,  suggested that perhaps the Act was not exactly a mere framework, but neither was a complete prescription, rather it was somewhere in between.

 

On data protection, the government argued that the processing of traffic data and personal data is in the legitimate interests of the rights-holders and would justify the intrusion of the Internet subscriber's privacy. He argued that the DE Act measures are proportionate because they preclude Internet subscribers being taken to court, and because they protect the rights of copyright owners, which as put to the court, are property rights and would trump the rights of the ISPs to trade.

 

He further submitted that under EU law, the ISPs are required to retain data specifically for the purpose of serious crime, but that in his opinion, would not preclude it being retained for other purposes in addition.

 

The judge commented that BT had a senior European data protection advisor on their side.

 

On mere conduit, the government answered BT's case by suggesting that secondary liability could be  implied by the injunction provisions under EU law,  and that BT took a very wide  interpretation of the concept which would mean anything would appeared to impose an economic disadvantage would be impossible. If right, then   measures such as graduated response could not operate.  Under questioning from the judge, the government suggested that it would be ‘bizarre' if the DE Act measures could not be implemented because of mere conduit.

 

The balance of copyright versus fundamental rights appeared to not in consideration from the government's viewpoint, as the references were always to the rights of copyright owners and the rights of ISPs.

 

The government's response to BT's point about a chilling effect  on for example, wifi networks was

" my submission is that chilling effect, if it exists, is reasonable and necessary  as flowing from an important component of the scheme...also is a price properly to be paid for the greater aim of protecting copyright owners interests and achieving the other, broader aims of the scheme" .

 

However, the government did play a sharp card in its defence when it attempted to demolish the argument from the other side. The government's barrister considered the case if BT were proved right:

 

"If he [BT's barrister - ed]  is right on  this, it would preclude any scheme of this kind,  however   justified as a sensible and proportionate mechanism for   protecting vital copyright interests -- and human rights --if he is right on his interpretation,  you simply could not have a scheme that looked like this  at all".

 

An interesting thought indeed!

 

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This report was compiled from my own notes taken at the hearing. Another report on Day 3 of the Judicial Review of the Digital Economy Act is  available from the Open Rights Group .

 

 

The correct attribution for this article is: Monica Horten (2011) Chilling effect is a ‘price worth paying’ says government barrister http://www.iptegrity.com 30 March 2011 

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