The European Commission raised several concerns to the UK government when legislation recently laid before parliament that forces ISPs to shoulder 25% of the costs of implementing anti-copyright infringement measures of the Digital Economy Act were sent to the EC for consultation.
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Verified documents passed to this blog show that the EC did not have access to sufficient "elements" to allow it to conclude that the costs that ISPs were expected to cover fell entirely into categories of adminstrative costs permitted under European law, namely Article 12 of the Authorisation Directive (2002/20/EC on the authorisation of electronic communications networks and services).
In addition, the EC asked for clarification that the costs would be "objective" as required under the same Article, because "the qualifying Internet Service Providers do not appear to benefit in any way from the planned online copyright measures."
The Commission also raised a further question over how up-front fees paid by the copyright owner to ISPs to cover their share of the costs would be estimated and adjusted over time based on the actual number of notifications made.
I have no idea if or how the UK government responded to the concerns raised by the EC, but on the surface it appears as though what I originally billed as the less-controversial half of the remaining legislation to implement the Digital Economy Act could still open itself up to challenge, in addition to the four points already being considered in the ongoing judicial review.
The current judicial review is due to hold a 3-day hearing starting on the 22nd March and will assess the Digital Economy Act 2010 against four challenges:
- The EC was not notified of the Act and since parts of the Act constitute a "technical regulation" within the meaning of the Technical Standards Directive (98/34/EC) it should therefore have been notified to the European Commission before enactment.
- Parts of the Act are not compatible with the E-Commerce Directive (2001/31/EC)
- Parts of the Act are not compatible with the E-Privacy Directive (2002/58/EC)
- Parts of the Act will unduly affect the ability of ISPs in other member states to offer services in the UK, leading to possible infringement of Articles 8 and 10 of the European Convention on Human Rights.