Internet service providers BT and TalkTalk have failed in an appeal to overturn the Digital Economy Act.
According to the Guardian, the final legal challenge to the act was thrown out at the Court of Appeal on all but one ground – that the Government could not make ISPs pay a proportion of the case fees attached to the act, which followed last year's judicial review of controversial anti-piracy legislation.
BT and TalkTalk had claimed the act's provisions were disproportionate and incompatible with EU laws on privacy, freedom of information and the responsibilities of ISPs.
They also said the act should not be enforceable because it had not been submitted in draft form to the European Commission, as required.
The initial bill was passed through Parliament in April 2010 despite protests by the Open Rights Group and MPs such as Tom Watson. The bill aimed to address the problem of copyrighted material being freely available, while other sections placed a burden on ISPs to crack down on excessive file-sharing, which led TalkTalk to pledge to take legal action against music and film companies that used the Digital Economy Act to gain customer details.
The Federation Against Software Theft (FAST) however welcomed the news on the ground that it would help tackle copyright infringement online.
Julian Heathcote Hobbins, general counsel at FAST, said: “Under the terms of the Digital Economy Act, all ISPs will now have to get ready to send warning letters to alleged illegal file downloaders and to keep lists of repeat infringers which can be requested under established legal procedures. Ofcom will publish the code on the practical application.
“As a matter of principle, this is a tremendous step forward and one that puts the provisions of the Digital Economy Act beyond this dog-fight, dispelling legal confusion.”
Peter Bradwell of the Open Rights Group said: “There is one thing the court cannot tell us: that this is a good law. The Department for Culture, Media and Sport had no evidence when they wrote this act, except for the numbers they were given by a couple of industry trade bodies. This is a policy made on hearsay and assumptions, not proper facts or analysis.
“So significant problems remain. Publicly available WiFi will be put at risk. Weak evidence could be used to penalise people accused of copyright infringement, and people will have to pay £20 for the privilege of defending themselves against these accusations. The Government needs to correct these errors with a proper, evidence-based review of the law.”