BT and TalkTalk have decided to appeal the High Court’s refusal to grant judicial review of the Digital Economy Act. The High Court judgement has been criticised as hasty and overly dismissive of the complex issues in the case, leading some to suggest the judge didn’t fully understand all the arguments put by the ISPs.

BT and TalkTalk’s case is based on five separate ways they argue that the Digital Economy Act is incompatible with European law. They say that it is incompatible with

• the Technical Standards Directive, because the UK didn’t notify the European Commission before the legislation was passed, as the Directive requires;
• the E-Commerce Directive, because the DEA imposes responsibilities on ISPs that because they carry copyright infringing content, when that Directive states that “mere conduits” should not be liable for the content they carry;
• two Privacy Directives (the Data Protection Directive and the Privacy and Electronic Communications Directive), because it requires the ISPs to record personally identifying data and process it for the benefit of rights-holders, without the consent of the data subject;
• the Authorisation Directive, in that the DEA imposes additional obligations on Public Electronic Communications Providers (specifically, ISPs), when that Directive sets out an exhaustive list of the requirements Member States may impose in order to permit people to operate an electronic communications service.
• basic principles of European law, including the Charter of Fundamental Rights and Freedoms, in that the Digital Economy Act’s measures against copyright infringement are fundamentally disproportionate.

The High Court was especially damning of the argument that the DEA was disproportionate, saying that an extremely high bar needed to be reached for the courts to overturn an Act of Parliament on the grounds of proportionality, and that Parliament was perfectly entitled to the view that copyright infringement was so serious that the DEA was required. In their appeal BT and TalkTalk have accepted that they cannot win on this basis and dropped that argument, although publicly they continue to insist that the Act is in fact a disproportionate response.