British Telecommunications Plc and Another, Regina (on The Application of) v The Secretary of State for Business, Innovation and Skills: Admn 20 Apr 2011

The claimant sought judicial review of legislative provisions requiring Internet Service Providers to become involved in regulation of copyright infringements by its subscribers. They asserted that the Act and proposed Order were contrary to European law.
Held: The request was refused. No obligation had yet fallen on the claimant, and the exact form and rules had not been settled. The anticipated obligations did properly relate to copyright infringement, and so did not go beyond obligations under European law.
Following the decision of the CJEU in Case C-275/05 Promusicae, held that the grounds for derogation under Article 15(1) of the e-Privacy Directive include all the legitimate aims listed in Article 13(1) of the Data Protection Directive.
Kenneth Parker J said: ‘It is not disputed that technical means of avoiding detection are available, for those knowledgeable and skilful enough to employ them. However, the central difficulty of this argument is that it rests upon assumptions about human behaviour. Experts can seek to establish a profile of those who engage in P2P file sharing, and their various reasons for doing so, and may then attempt to predict how these users may be likely to respond if confronted with the kind of regime that the DEA enacts. In theory, some may cease or substantially curtail their unlawful activities, substituting or not, for example, lawful downloading of music; others may simply seek other means to continue their unlawful activities, using whatever technical means are open. The final outcome is uncertain because it is notoriously difficult accurately to predict human behaviour’

Kenneth Parker J
[2011] EWHC 1021 (Admin)
Copyright (Initial Obligations) (Sharing of Costs) Order 2011, Digital Economy Act 2010, Technical Standards Directive (Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998, Electronic Commerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L No 178), Privacy and Electronic Communications Directive, Communications Act 2003, Data Protection Act 1998, Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417)
England and Wales
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Innocent third Party May still have duty to assist
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The provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as . .
CitedTelecom Italia v Ministero dell’Economia e delle Finanze, Ministero delle Comunicazioni (Freedom To Provide Services) ECJ 21-Feb-2008
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CitedWilson v First County Trust Ltd (1) CA 3-Nov-2000
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Cited by:
CitedTwentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
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CitedSecretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Information

Updated: 02 November 2021; Ref: scu.434869