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R (otao (1) BRITISH TELECOMMUNICATIONS PLC (2) TALKTALK TELECOM GROUP PLC) v SofS FOR BUSINESS, INNOVATION & SKILLS & BPI LTD & 9 ORS & (1) OPEN RIGHTS GROUP (2) ARTICLE 19 & CONSUMER FOCUS

The online infringement of copyright provisions in the Digital Economy Act 2010 were not incompatible with EU law. However, the draft Copyright (Initial Obligations) (Sharing of Costs) Order 2011, which proposed to make internet service providers liable for 25 per cent of the costs incurred by OFCOM in carrying out functions under the copyright infringement provisions, did infringe Directive 2002/ 20 art.12.

3 May 2011

The claimant internet service providers (B) applied for judicial review of the online infringement of copyright provisions (the "contested provisions") in the Digital Economy Act 2010. They also challenged the draft Copyright (Initial Obligations) (Sharing of Costs) Order 2011, which proposed to make service providers liable for 25 per cent of the costs incurred by OFCOM in carrying out functions under the contested provisions. The 2010 Act was designed to tackle unlawful file sharing. Under the contested provisions, B were obliged to send warning letters to those subscribers identified as unlawfully sharing copyright material and to compile a list of such subscribers. However, the industry code which brought those obligations into legal effect had not yet been introduced. It was B's case that the contested provisions were incompatible with EU law. B submitted that the provisions (1) constituted a technical regulation and/or rule on services within the meaning of Directive 98/34 and...

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