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ISPs lose appeal challenging the Digital Economy Act

13 March 2012

An appeal by BT and TalkTalk regarding measures to tackle copyright infringement online, a rapidly growing issue, has been rejected in the Court of Appeal. The ISPs (Internet Service Providers) challenged the provisions of the Act stating that they were incompatible with EU law, including the E-commerce directive. The decision rested on some key technical issues regarding the construction of legislation.

Under the Act ISPs will be required to send warning notifications and potentially cut off alleged illegal file downloader’s services, raising concerns regarding privacy and costs of this obligation on the providers, however the Court stated that ISPs would not be liable for case fees in relation to subscriber appeals. They will now have to consider how to deal with the implementation of this Act and its provisions and the effect it may have on their customers.

It is likely that the parties will seek leave to appeal the decision and flowing from this the promised Initial Obligations Code for ISPs will probably suffer further delays while this matter plays out.

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