R and Others v Secretary of State for Culture, Olympics, Media and Sport BPI (British Recorded Music Industry) Ltd and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Patten,Lady Justice Arden |
| Judgment Date | 06 March 2012 |
| Neutral Citation | [2012] EWCA Civ 232 |
| Date | 06 March 2012 |
| Docket Number | Case No: C1/2011/1437 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 232
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Kenneth Parker
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Richards
and
Lord Justice Patten
Case No: C1/2011/1437
and
Antony White QC and Kieron Beal (instructed by BT Legal and TalkTalk Legal) for the Appellants
James Eadie QC, Robert Palmer and Alan Bates (instructed by The Treasury Solicitor) for the Respondent
Pushpinder Saini QC and James Strachan (instructed by Wiggin LLP) for the Interested Parties
Hearing dates : 16–17 January 2012
This is an appeal against an order made by Kenneth Parker J in judicial review proceedings relating to the compatibility of the online infringement of copyright provisions ("the contested provisions") of the Digital Economy Act 2010 ("the DEA 2010") and the draft Copyright (Initial Obligations) (Sharing of Costs) Order 2011 ("the draft Costs Order") with a number of EU directives.
The DEA 2010 inserted new sections 125A to 125N into the Communications Act 2003 as a response to the growing problem of subscribers to internet services uploading and accessing material online in breach of copyright. In broad outline, the contested provisions impose "initial obligations" on internet service providers ("ISPs") to notify subscribers of copyright infringement reports (or "CIRs") received from copyright owners, and to provide copyright infringement lists (or "CILs") to copyright owners, if an "initial obligations code" is in force. They make provision for the approval or making of an initial obligations code and as to the content of such a code, and empower the Secretary of State to specify provisions that must be included in the code about payment of contributions towards costs incurred: the draft Costs Order is to be made in the exercise of that power. They also provide for the possible future introduction of additional "technical obligations" on ISPs, together with a "technical obligations code". This case is concerned, however, only with the initial obligations, the initial obligations code and the related provisions as to costs.
The appellants, British Telecommunications Plc and TalkTalk Telecom Group Plc, are ISPs. They were the claimants in the court below, where they advanced a multi-faceted but largely unsuccessful challenge to the contested provisions and the draft Costs Order.
The defendant was formerly the Secretary of State for Business, Innovation and Skills, but owing to a transfer of functions the correct respondent to the appeal is now the Secretary of State for Culture, Olympics, Media and Sport.
The interested parties are organisations, employers, unions and associations concerned with the protection of copyright in works belonging to their members.
Kenneth Parker J's judgment below is extremely thorough, clear and cogent. I will cross-refer to it for many points of detail, whilst aiming to include sufficient in my own judgment for a proper understanding and resolution of the issues in the appeal. A number of the issues decided by the judge have fallen away. Permission to appeal has been granted on grounds that cover four areas:
(1) Ground 1: whether the contested provisions should have been notified to the EU Commission in draft pursuant to Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC, ("the Technical Standards Directive"), with the result that they are unenforceable for want of notification.
(2) Ground 2: whether the contested provisions are incompatible with provisions of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ("the Electronic Commerce Directive" or "the ECD").
(3) Ground 3: whether the contested provisions are incompatible with provisions of Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ("the Data Protection Directive" or "the DPD") and/or of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector ("the Privacy and Electronic Communications Directive" or "the PECD").
(4) Ground 4: whether the contested provisions are incompatible with provisions of Directive 2002/20/EC of 7 March 2002 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC, ("the Authorisation Directive" or "the AD").
Ground 1 does not apply to the draft Costs Order, which was notified to the Commission in draft. Whilst grounds 2 to 4 do apply to the draft Costs Order, it is only under ground 4 that it requires specific consideration.
The background to the DEA 2010 is described in some detail by the judge at [7]-[38]. I do not need to repeat it here.
The contested provisions are examined by the judge at [39]-[51]. Since they are central to the issues in the appeal, I will explain the main provisions before turning to consider the various grounds of appeal.
The contested provisions
The references below are to provisions of the Communications Act 2003 as inserted by sections 3 to 16 of the DEA 2010. The provisions fall under the heading "Online infringement of copyright obligations of internet service providers".
Section 124A imposes an obligation on ISPs to notify subscribers of copyright infringement reports (as defined in the section). It provides:
"124A.(1) This section applies if it appears to a copyright owner that –
(a) a subscriber to an internet access service has infringed the owner's copyright by means of the service; or
(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service.
(2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an 'initial obligations code') allows the owner to do so.
(3) A 'copyright infringement report' is a report that –
(a) states that there appears to have been an infringement of the owner's copyright;
(b) includes a description of the apparent infringement;
(c) includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;
(d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and
(e) complies with any other requirement of the initial obligations code.
(4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so.
(5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.
(6) A notification under subsection (4) must include … [a detailed list of matters, including, at (6)(i), 'anything else that the initial obligations code requires the notification to include'].
…."
Section 124B imposes an obligation on ISPs to provide copyright infringement lists (as defined in the section) to copyright owners. It provides:
"124B.(1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if –
(a) the owner requests the list for that period; and
(b) an initial obligations code requires the internet service provider to provide it.
(2) A 'copyright infringement list' is a list that –
(a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but
(b) does not enable any subscriber to be identified.
(3) A subscriber is a 'relevant subscriber' in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code."
Sections 124C to 124E all concern the initial obligations code. Section 124C provides for the approval of a code made by persons other than Ofcom; section 124D provides for the making of a code by Ofcom in the absence of a code approved under section 124C; and section 124E relates to the contents of a code. An order approving or making a code must be laid before Parliament and is subject to annulment in pursuance of a resolution of either House.
Section 124C provides:
"124C.(1) The obligations of internet service providers under sections 124A and 124B are the 'initial obligations'.
(2) If it appears to OFCOM –
(a) that a code has been made by any person for the purpose of...
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