Court grants fourth ground for Digital Economy review

The Digital Economy Act will be reviewed on grounds of proportionality, a High Court judge has ruled.

The court had already ruled, on Wednesday, that the copyright crackdown legislation should be reviewed on three other grounds: that the government failed to notify the European Commission as it should have; that the E-Commerce Directive should stop ISPs from being held liable for data going through their networks; and that ISPs would have to deal with data that privacy law says they should not see. However, a decision on the fourth ground had been delayed pending the opinion of EU data protection chief Peter Hustinx.

On Friday evening, according to ISP Review, Mr Justice Wyn Williams said Hustinx had reported back that the three-strikes regime put forward in the act was disproportionate. Therefore, the review requested by BT and TalkTalk will go ahead on all four counts.

The head of the Federation Against Software Theft (Fast) is furious about the decision to review the act, for which Fast lobbied heavily. The group issued a statement on Friday entitled "Who actually makes the law — the Government or the Judiciary?"

According to the way laws are made in the UK, it is actually both the government and the judiciary that make the law, as case law is as valid as the statutes passed by Parliament.

"It is staggering that this act, bourn [sic] out of years of consultation, of debate and of parliamentary time, is now being challenged in some last ditch attempt by the ISPs to ensure they are not hit financially," Fast chief John Lovelock said in the statement.

"We have long struggled with rampant internet piracy, together with other intellectual property rights holders and that debate did appear to have taken a step forward when this act was passed earlier in the year. But what we are now seeing is a rear guard action by some as a potential move to undermine its credibility and legal framework through the courts."