BT Plc & Anor, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors

At the permission stage, the Court of Appeal asks whether proposed grounds have a real prospect of success or otherwise justify permission. Permission may be warranted where a substantial question of statutory or European-law interpretation is supported by conflicting views. It should be refused where the lower court’s reasoning is compelling and unassailable. Permission was granted on all grounds except the challenge concerning Article 15 of the E-Commerce Directive.

BT plc and TalkTalk renewed an application for permission to appeal after Kenneth Parker J refused their judicial-review challenge to provisions of the Digital Economy Act 2010, subject to one limited exception. Sir Richard Buxton had confirmed the refusal of permission on the papers.

The challenge concerned obligations imposed on internet service providers, including copyright-infringement reports, subscriber notifications, copyright-infringement lists and possible technical obligations affecting internet access. The proposed appeal raised notification under the Technical Standards Directive; Articles 12, 15 and 3 of the E-Commerce Directive; Article 8(2)(e) of the Data Protection Directive; Article 15 of the Privacy and Electronic Communications Directive; and the Authorisation Directive. The central issue was whether any of those grounds had a real prospect of success.

1. The renewed application was granted in part. Permission to appeal was refused on the Article 15 ground under the E-Commerce Directive, but granted on all other grounds. The Court of Appeal was determining permission only, not the substantive legality of the legislation.
2. On the Technical Standards Directive, the first-instance judge had formulated the relevant question as whether the measure had legal effect by itself. The measure had to be binding and sufficiently precise and specific to be enforceable against an affected individual. The appellants had a real prospect of showing that the judge had mischaracterised the statutory scheme by treating immediate effect as necessary. The judge’s reasoning instead appeared to be that the initial obligations depended on a code and were insufficiently particularised without it.
3. Permission was granted on Article 12 of the E-Commerce Directive because the proposed construction of liability for information transmitted as responsibility resulting from transmission had a real prospect of success. Permission was refused on Article 15 because the judge’s preferred construction was compelling, convincing and unassailable.
4. Permission was also granted on Article 3. The scope of the copyright carve-out raised an arguable issue, particularly because differing views had been expressed by the European Data Protection Supervisor, the judge and the European Commission.
5. On data protection, the question was whether processing data was permissible under Article 8(2)(e) of the Data Protection Directive as necessary for the establishment, exercise or defence of legal claims. The disagreement between the judge and the European Data Protection Supervisor justified permission. The Advocate General’s Opinion in Scarlet Extended SA v SABAM, Case No: C-70/10, also provided support for permission on Article 15 of the Privacy and Electronic Communications Directive. A disagreement between the judge and the European Commission similarly justified permission on the Authorisation Directive.

Order: permission to appeal refused on the Article 15 point; permission granted on all other grounds.

1. Court of Appeal (Civil Division): Lord Justice Lewison granted permission on all grounds except the Article 15 point under the E-Commerce Directive.
2. High Court of Justice, Queen’s Bench Division: Kenneth Parker J refused the judicial-review challenge with one limited exception and refused permission to appeal. Sir Richard Buxton confirmed that refusal on the papers.