A legal challenge to the Digital Economy Act by BT and TalkTalk threatens to reopen rifts between broadband providers and content owners over how they tackle online piracy.
BT and TalkTalk have filed papers with the High Court asking for a judicial review of the act, which was passed in the “wash-up” process at the end of the last parliament.
The internet service providers, who together have more than 9m broadband customers, believe that the hastily debated act failed to follow legal procedures required by several European directives, concerning privacy, proportionality, e-commerce and technical standards.
“We want a quick hearing so everyone can be clear about this before the end of the year,” said Simon Milner, industry policy director at BT.
The challenge comes as record labels, film and television producers and ISPs meet Ofcom, the media regulator, to discuss implementing the act’s crackdown on piracy. BT and TalkTalk’s actions appeared at odds with hopes that the two industries might forge a rapprochement after years of argument over who is responsible for pursuing unlawful downloaders.
Although TalkTalk has been outspoken in its criticism of the act throughout its passage, BT has hitherto been more measured in its comments, as it seeks to expand by creating media services such as BT Vision. Other ISPs were not invited to join the campaign.
Every film downloaded from the Pirate Bay or the dozens of other sites offering unlicensed content is a lost sale for BT Vision, Mr Milner said, and commercial negotiations with rights holders are continuing.
But he added: “This is their business: it’s up to them to find a solution to their business problems . . . It’s not principally our problem.”
The ISPs say the interests of both their customers and shareholders are at stake.
Charles Dunstone, chairman of TalkTalk, said that enacting the law would invade innocent people’s privacy. “We think the previous government’s rushed approach resulted in flawed legislation. That’s why we need a judicial review.”
The BPI, which represents record labels, said the legal challenge was a “disappointment but not a surprise . . . [BT and TalkTalk] appear desperate to protect their vast profits at the expense of musicians and creators. We are hopeful that this will not delay the implementation of the act.”
Under the act, ISPs would be required to write warning letters to thousands of customers whom rights holders found had been downloading their content illegally. If that failed to deter 70 per cent of pirates, ISPs could be required to block certain sites or suspend the internet access of repeat offenders.
Many contributors to the government’s Your Freedom website, which invites nominations of laws to repeal, cite the Digital Economy Act. Internet companies such as Google, Facebook and Yahoo also criticised the law during its passage.
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