British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills

Primary legislation does not constitute an enforceable technical regulation merely because it establishes a framework for later rules. The relevant obligations must themselves have legal effect and be sufficiently precise and specific to bind individuals. Where the legislation makes obligations conditional on a code which has not yet been made, the code may be the notifiable technical regulation.

A mere-conduit internet service provider is not made liable for information transmitted merely because it must identify subscribers, send infringement notices, maintain records or bear regulatory costs. Such measures do not impose a general monitoring obligation. In proportionality challenges to complex legislation balancing competing fundamental rights and economic interests, substantial weight may be given to Parliament’s assessment.

British Telecommunications Plc and TalkTalk Telecom Group Plc, both internet service providers, sought judicial review of provisions of the Digital Economy Act 2010 concerning online copyright infringement and of a draft costs-sharing order.

They alleged breaches of the Technical Standards Directive, the E-Commerce Directive, the Data Protection Directive, the Privacy and Electronic Communications Directive, the Authorisation Directive, and proportionality requirements under EU law and human rights instruments. The principal issues were whether the statutory framework had already created enforceable technical regulations, whether it unlawfully burdened or monitored mere-conduit providers, whether its costs provisions were lawful administrative charges, and whether the scheme was disproportionate.

1. Technical Standards Directive. The initial obligations under sections 124A–124E of the Communications Act 2003 did not yet have legal effect. Their operation was expressly conditional on an initial obligations code, and their substantive content remained to be defined by that code. They were therefore not presently enforceable technical regulations. The code, once drafted and notified before enactment, would constitute the relevant technical regulation. The same conclusion applied to the technical-obligations, appeals, penalty and blocking-injunction provisions.
2. The obligation to provide information to Ofcom under section 135 of the Communications Act 2003 was a distinct and specific liability arising from the statutory framework. The judge considered that it appeared capable of being a rule on services, but held that it did not give the initial obligations legal effect. In the absence of notification, ISPs could not be legally required to provide information specifically for Ofcom’s new code-making function.
3. E-Commerce Directive. Article 12 protects a mere conduit from liability for the underlying transmitted information, such as fines, damages or compensation for copyright infringement. It does not prevent obligations to receive infringement reports, identify subscribers, notify them, compile lists, comply with technical measures or bear related regulatory costs. Article 12(3) permits orders requiring termination or prevention of infringement. Article 15 prohibits general monitoring, but the statutory scheme required ISPs to process reports made by copyright owners; it did not require them to inspect transmitted information or actively seek evidence of illegality.
4. The copyright exclusion in the Annex to Article 3 of the E-Commerce Directive remained effective. The Copyright Directive harmonised only certain aspects of copyright and had not expressly removed that exclusion. In any event, the scheme did not conflict with Article 8(3) of the Copyright Directive.
5. The processing of subscriber information and infringement data was capable of falling within the legal-claims and legitimate-interests provisions of the Data Protection Directive. The relevant information could constitute personal data, and some material could be sensitive data. Processing was not impermissible merely because a copyright owner might ultimately decide not to litigate. The traffic-data provisions of the Privacy and Electronic Communications Directive were capable of being justified under its Article 15(1), including for protection of copyright as property.
6. Authorisation Directive. The contested provisions were not conditions of the general authorisation and did not need to be included in it. “Qualifying costs” charged to ISPs for Ofcom’s administration were, however, administrative charges within Article 12 and did not relate to permitted costs. The claim succeeded on that issue. Relevant internal ISP costs and appeal case fees were not administrative charges.
7. The exclusions for smaller ISPs and mobile network operators were reasonable and proportionate policy choices on the evidence. The broader proportionality challenge failed. Parliament was entitled to give substantial weight to evidence concerning copyright harm, deterrence and education, while balancing copyright protection against privacy, expression, access to information and the interests of ISPs and subscribers.
8. The claim succeeded only in respect of Article 12 of the Authorisation Directive. Permission was granted for that ground, all other claims were dismissed, and appropriate relief was ordered.

First-instance judicial review proceedings. The judgment does not state any subsequent appellate decision.