Thanks to the Open Rights Group for letting me know that TalkTalk have published the joint statement of facts and grounds they filed this summer in the judicial review challenge they’re mounting, together with BT, against the Digital Economy Act.
I won’t comment on the main arguments now – I’ll do that when I have more time (and when I’ve seen the government’s defence, if I can get it from the Administrative Court). In summary, though, they’re claiming the Act breaches three EU Directives: the Technical Standards Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive.
R (BT and TalkTalk) v Secretary of State for Business: statement of fact and grounds
They do rely on EU free movement law and human rights too, but those seem to me to be secondary arguments. I’m not sure how they think the free movement arguments work, since I assume neither firm is exercising free movement rights by providing services in the UK – but they’re having a go. I don’t think the arguments they make about the supposedly flawed nature of the government’s assessment of proportionality cut any ice, either: what matters is whether or not the Act actually is a proportionate interference with either EU rights or human rights – not whether the government thought in the wrong way about proportionality.
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