The Digital Economy Act has proved to be one of the most controversial pieces of legislation to have been passed in recent years.
The act came into force last year, but internet service providers (ISP) British Telecom (BT) and TalkTalk have challenged their rights and responsibilities under the act through an application for judicial review.
The judicial review attempt failed at first instance (see judgment), but the ISPs are applying for the right to appeal. In the meantime, another case addressing the question of what an ISP must do when its users access pirated material online is in court.
The Motion Picture Association (MPA) - a powerful consortium of Hollywood film studios - has taken BT to court in an attempt to obtain a service provider injunction that would force the ISP to block access to a website called Newzbin. Newzbin is a website that provides links to material hosted online, including copies of films where the copyright is owned by members of the MPA.
Last year the MPA successfully obtained an injunction against Newzbin, preventing it from giving access to its members’ films (see judgment). However, Newzbin went into administration, its assets were sold and it began operating again from the Seychelles - making the injunction unenforceable.
This week’s hearing before Mr Justice Arnold sees the MPA taking a slightly different tack. As it cannot stop Newzbin from operating, it is trying to stop BT’s customers from accessing the site. A ruling in the MPA’s favour would be the first time an English court has granted a service provider injunction, although European courts have ruled in favour of copyright owners in similar cases.
Lawyers point out that BT is a “mere conduit” for the MPA’s action - in essence, under English law it has to pursue this course of action as Newzbin is now outside of the court’s jurisdiction.
BT itself, which is handling the case in-house with advice from Matrix Chambers’ Antony White QC and Blackstone Chambers’ Kieron Beal, says: “BT opposes copyright infringement, but is fighting this test case in pursuit of legal clarity. We do not believe BT should block websites without a court injunction ordering us to do so.”
If Arnold J decides in favour of the MPA and the studios there could be a number of similar cases against ISPs.
But the question, say some, is wider than merely copyright protection. If BT blocks access to the whole of Newzbin, it could be preventing users from accessing non-protected material. That could be seen as restriction of freedom of expression, protected under European law. The MPA is arguing that its property rights outweigh the right of freedom of expression in this case.
Perhaps the big winner here is media law boutique Wiggin, which has acted for the MPA throughout. Partner Simon Baggs represented the MPA in last year’s Newzbin case and as an interested party in the judicial review, and is involved in the case against BT too. Baggs has brought on board 4-5 Gray’s Inn Square’s Richard Spearman QC, who is better known for his privacy and libel work, but is undeniably a leading media silk.
Copyright and IP lawyers will be watching the outcome of this landmark and very modern case closely.