I read with interest that BT and TalkTalk have requested a judicial review of the Digital Economy Act 2010 before it is brought into force. As readers of this blog will be aware, opposition to the Digital Economy Bill was vociferous, widespread, and based on both principle and detail.
Interestingly, BT and TalkTalk have opted to attack implementation of the Bill on a wide front – at least, as far as I can infer from this article on the BBC News site. Here are some of the points on which I understand they will seek clarification through the judicial review process:
– does the Act unfairly restrict competition in the telecomms market, by applying a Code of Conduct only to network service providers with more than 400,000 subscribers? (TalkTalk argue that the result of this could be a flight of customers to smaller, less regulated ISPs);
– does the Act conflict with EU legislation, which rules that ISPs are “mere conduits” of the information they transmit and thereby limits their liability arising from that information?
and perhaps most fundamental of all,
– did the way in which the Bill was passed undermine its legitimacy? (They argue that it was rushed through with insufficient parliamentary debate, in a truncated process far short of the normal legislative timetable – and it’s hard to dispute that point: the Bill was passed in a matter of hours, instead of the 3-4 weeks of Committee Stage deliberation and revision normal for a Bill of this scope).
If the judicial review finds in their favour on that point, it could set a fascinating precedent.