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The verdict on the Judicial Review of the DEA (as previously discussed here: Entanet Opinion: DEA – Finally, time for some common sense!) is finally in and unfortunately it delivers yet more bad news for the Internet industry.  The review was dismissed on four out of the five grounds with the fifth being partially granted.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The grounds were as follows:

  • Breaching  the Technical Standards Directive by failing to notify the EC.
  • Breaching the e-Commerce Directive which provides that ISPs cannot be held responsible for data going through their networks.
  • Breaching the Privacy and Electronic Communications Directive as ISPs have to deal with data not specifically permitted.
  • Disproportionate measures with regards to the three strikes system.
  • The fifth ground was based on ISPs objection to paying 25% of the costs. As discussed here: Entanet Opinion: DEA passes buck to ISPs

This delivers yet another blow for the Internet industry which was hoping that the controversial Act would finally be subjected to some common sense through the courts and be amended. Unfortunately though the DEA survived intact yet again!

The fifth ground regarding the allocation of costs also provides little comfort to ISPs who will not be required to contribute towards the costs of setting up this scheme but will still be required to contribute 25% of the costs for running the appeals process and the letter notifications as part of the three strikes policy.

To say we are disappointed by this outcome would be a huge understatement but we are not particularly surprised. The Government (and now the courts) seem determined to get this controversial and poorly considered Act implemented no matter what and seem to have little consideration for the views of one of the two main industries to be affected by it. We continue to applaud BT and TalkTalk for fighting this Act and hope they are able to mount an appeal on this decision.

Updated: 6th June 2011

BT and TalkTalk will seek an appeal against the disappointing outcome of the judicial review they brought against the DEA. A BT statement said “The two companies have chosen to seek an appeal on four of the five grounds addressed in the initial High Court case. These relate to the EU’s Technical Standards Directive, the Authorisation Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive. BT and TalkTalk believe the DEA is not consistent with these directives.”

Whilst we admire their persistence we don’t hold out much hope of anything changing. In order for the appeal to be successful BT and TalkTalk will need to prove that the initial review which found that the Act was “broadly compatible with EU law” was incorrect, which is unlikely. However such an appeal could help to delay the implementation of this highly controversial law even further, adding further strain and raising more questions about its feasibility.

Updated: 22nd June 2011

BT and TalkTalk’s appeal against the DEA has been rejected. However the companies have hinted that they may take this further with plans to appeal to the European courts. Hopefully they will have more luck there as the basis of their appeal was due to a lack of compatibility with EU law.

Updated: 11th October 2011

BT and TalkTalk have won a further right to appeal from the Court of Appeal. We now await any updates from BT and/or TalkTalk to advise whether or not they plan to persist with this Judicial Review.

Have your say!

What are your thoughts about this latest DEA news? Are you also disappointed by the outcome of the review or are you a supporter of the Act? Let us know your thoughts by leaving us a comment below.

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