The High Court began its judicial review of the controversial Digital Economy Act (DEA) yesterday, after complaints from BT and TalkTalk that the legislation puts too much responsibility on internet providers.
The DEA was brought in by the previous government to help tackle the growing problem of internet piracy.
The current legislation allows content providers to monitor networks for illegal activity, and when an IP address is identified, ISPs become responsible for taking action against the user.
BT and TalkTalk are challenging whether the Act is enforceable under current EU legislation.
"It's disappointing that we feel the need to take action but we feel we have no choice. We have to do this for our customers who otherwise run the risk of being treated unfairly," said Gavin Patterson, chief executive of BT Retail.
"Our dispute is not with the current government but with the way the previous administration pushed this through without due process. We need clarity about whether this legislation is compatible with important EU laws," he added.
If the High Court were to rule in favour of BT and TalkTalk, the Act would no longer be enforceable.
Chris Coulter, partner at law firm Morrison & Foerster, argued that the legal system needs updating if it wants to be relevant in the digital era.
"The debate around site blocking is a grey area in legal terms and demonstrates that the law is struggling to keep up with the digital world. There are also practical issues that can't be ignored, such as whether partial blocking is even feasible," he said.
"There are legal grey areas around peer to peer and other search-enhanced distribution. The law needs to be developed to meet those technology challenges," he added.
"But – with an ever-increasing array of content access services available to consumers – it's the content creators themselves who need to be proactive in encouraging a compelling service environment."
Communication solutions provider Interoute argues that asking ISPs to take action is too much of a task, and they should work collaboratively to come to a solution.
"Asking ISPs to slow or even cut off internet access is an unrealistic solution. This is the equivalent of shutting down eBay because a seller auctioned counterfeit goods. The buck is being passed to internet service providers, when the industry as a whole needs to take responsibility for the protection of online content," said Lee Myall, regional director at Interoute.
"The Act was originally due to be passed in January this year, so ISPs and content owners should look to use this extra time wisely to come to an agreement on how best to protect online content, without compromising the trust consumers put in the ISPs," he added.
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