“124E.(1) The criteria referred to in sections 124C(6) and 124D(6) are – (a) that the code makes the required provision about copyright infringement reports …; (b) that it makes the required provision about the notification of subscribers …; (c) that it sets the threshold applying for the purpose of determining who is a relevant subscriber within the meaning of section 124B(3) … (d) that it makes provision about how internet service providers are to keep information about subscribers; (e) that it limits the time for which they may keep that information; (f) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M; (g) that the requirements concerning administration and enforcement are met in relation to the code …; (h) that the requirements concerning subscriber appeals are met in relation to the code …; (i) that the provisions of the code are objectively justifiable in relation to the matters to which it relates; (j) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons; (k) that those provisions are proportionate to what they are intended to achieve; and (l) that, in relation to what those provisions are intended to achieve, they are transparent.” (a) that the code makes the required provision about copyright infringement reports …; (b) that it makes the required provision about the notification of subscribers …; (c) that it sets the threshold applying for the purpose of determining who is a relevant subscriber within the meaning of section 124B(3) … (d) that it makes provision about how internet service providers are to keep information about subscribers; (e) that it limits the time for which they may keep that information; (f) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M; (g) that the requirements concerning administration and enforcement are met in relation to the code …; (h) that the requirements concerning subscriber appeals are met in relation to the code …; (i) that the provisions of the code are objectively justifiable in relation to the matters to which it relates; (j) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons; (k) that those provisions are proportionate to what they are intended to achieve; and (l) that, in relation to what those provisions are intended to achieve, they are transparent.”
“Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard …; they shall also let the Commission have a statement of the grounds which make the enactment of such technical regulation necessary, where these have not already been made clear in the draft. Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation ….”
“26. That finding is not called in question by the fact that … the extension of the scope of the rule is based on an enabling provision which was previously communicated to the Commission. That enabling measure, taken as such, does not require to be notified on the basis of Article 8 aforesaid since it does not constitute a new specification. The situation is different as regards the implementation of that measure, which does constitute a new specification which must be notified.”
“26. As regards the 1991 Decree, it contains detailed rules defining, in particular, the conditions concerning the quality tests and function tests which must be fulfilled in order for an alarm system or network to be approved and marketed in Belgium. Those rules therefore constitute technical regulations within the meaning of Directive 83/189. 27. As regards Article 12 of the 1990 Law, it is to be recalled that it provides that the products in question may be marketed only after having been previously approved according to a procedure to be laid down by royal decree, which was laid down by the 1991 Decree. … 29. A rule is classified as a technical regulation for the purposes of Directive 83/189 if it has legal effects of its own. If, under domestic law, the rule merely serves as a basis for enabling administrative regulations containing rules binding on interested parties to be adopted, so that by itself it has no legal effect for individuals, the rule does not constitute a technical regulation within the meaning of the directive (see the judgment inCase C-317/92 Commission v Germany[1994] ECR I-2039 , paragraph 26). It should be recalled here that, according to the first subparagraph of Article 8(1) of Directive 83/189, the Member States must communicate, at the same time as the draft technical regulation, the enabling instrument on the basis of which it was adopted, should knowledge of such text be necessary to assess the implications of the draft technical regulation. 30. However, a rule must be classified as a technical regulation within the meaning of Directive 83/189 if, as the Belgian Government submitted at the hearing, it requires the undertakings concerned to apply for prior approval of their equipment, even if the administrative rules envisaged have not been adopted. 31. The reply to be given to the third and fourth questions must therefore be that … provisions such as those contained in the 1991 Decree do constitute technical regulations and that classification of a rule such as Article 12 of the 1990 Law depends on the legal effects which it has under domestic law.”
“32. Consequently, the Court must also consider the possibility that, in the light of all the factual and legal evidence before the national court, that court will reach the conclusion that the second paragraph of Article 4 of Decree No 92-377 must be interpreted as imposing on producers an obligation to mark or label the packaging, although not specifying what sign must be affixed. 33. In such an event, it would have to be held that that provision is in fact a technical specification within the meaning of Directive 83/189 and, consequently, that, since the obligation is imposed by decree in the case of marketing of packaged products throughout the national territory, that provision constitutes a technical regulation. 34. In that case, even though the detailed rules regarding the marking or the labelling remained to be defined, marking or labelling would, in itself, be compulsory, also for imported products …. In addition, having regard to the aim of Directive 83/189, namely the protection of free movement of goods by means of preventive control (see, in particular,Case C-194/94 CIA Security International[1996] ECR I-2201 , paragraphs 40 and 48), such a control, implemented in accordance with the procedure prescribed by that directive, would be both appropriate and possible.”
“107. However, penalties may be imposed under section 124L only as a sanction for a breach of an initial obligation, for example, by a failure to notify a subscriber of a CIR, or to provide a copyright owner with a Copyright Infringement List (‘CIL’), or for a breach of a technical obligation (a failure to take a technical measure against a relevant subscriber), or for a failure to give Ofcom any assistance that they reasonably require for the purposes of complying with any direction by the Secretary of State. These liabilities arise as a result of the specific scheme established by the DEA, of which the core obligations, so far as concern ISPs, are that ISPs are obliged to receive CIRs from copyright owners and to communicate such CIRs to their subscribers, and to compile CILs for onward transmission to copyright owners. These core obligations do not constitute any liability ‘for the information transmitted’, that is, in respect of the underlying infringement of copyright that has given rise to CIRs and CILs, as explained earlier. Without the underlying infringement, there would be no CIR or CIL: but the legal test is not whether a liability has arisen because there was an initial infringement of copyright; the liability must arise in respect of that underlying infringement, so that the liability is for the information transmitted. The liabilities or costs referred to by Mr White are wholly dependent upon the regulatory regime under the DEA and are essentially parasitic on the core obligations of the ISPs. In that sense they are one stage removed from the core obligations and do not, any more than those obligations, constitute any liability ‘for the information transmitted’. The same analysis applies to costs and/or compensation arising from subscriber appeals. The liability to pay such costs and/or compensation arises in essence from the failure of an ISP to discharge its core obligations under the DEA. Nor does any eventual requirement to take technical measures impose a liability ‘for the information transmitted’: such a requirement is an element in a regulatory procedure designed to put appropriate controls on those subscribers who, despite other measures, have persisted in copyright infringements. 108. Mr White frankly accepted that the foregoing obligations and costs could fall within Article 12 only if the crucial words of that Article meant ‘an economic or other burden falling on an ISP that would not have so fallen if there had not been a transmission of information in breach of copyright, etc.’, or other language to that effect. However, for the reasons already given, I am not able to extract such an extended meaning from the language of Article 12 without doing violence to that language and thereby upsetting the careful balance represented by the text ….”
“3(1) Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. (2) Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. (3) Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex. (4) Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: … [the conditions refer inter alia to the necessity for the measures and to a prior notification procedure].”
“copyright, neighbouring rights, rights referred to in Directive 87/54/EEC and Directive 96/9/EC as well as industrial property rights.”
“(50) It is important that the proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society and this Directive come into force within a similar time scale with a view to establishing a clear framework of rules relevant to the issue of liability of intermediaries for copyright and relating rights infringements at Community level.”
“1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. 2. Paragraph 1 shall not apply where: … (e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims.” … (e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims.”
“159. The Defendant and the Interested Parties rely on Article 8(2)(e) …: the processing is necessary for ‘the establishment, exercise or defence of legal claims’. That would appear to be the precise purpose of the contested provisions of the DEA: the copyright owner will be able, through the procedures under the DEA, to establish not only that there has been an infringement of copyright but also who is responsible for the infringement.”
“Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union ….”
“It is clear, however, that Article 15(1) of Directive 2002/58 ends the list of the above exceptions with an express reference to Article 13(1) of Directive 95/46. That provision also authorises the Member States to adopt legislative measures to restrict the obligation of confidentiality of personal data where that restriction is necessary interalia for the protection of the rights and freedoms of others. As they do not specify the rights and freedoms concerned, those provisions of Article 15(1) of Directive 2002/58 must be interpreted as expressing the Community legislature’s intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings.”
“a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive.”
“1. The general authorisation for the provision of electronic communications networks or services … shall be subject only to the conditions listed in the Annex ….. … 3. The general authorisation shall only contain conditions which are specific for that sector and are set out in Part A of the Annex and shall not duplicate conditions which are applicable to undertakings by virtue of other national legislation.”
“9. Restrictions in relation to the transmission of illegal content, in accordance with [the Electronic Commerce Directive] ….”
“1. Any administrative charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use has been granted shall: (a) in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection ….” (a) in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection ….”
“197. For the reasons already given, I agree that the contested provisions do not, and could not properly, form part of the conditions of the general authorisation. However, Article 12 does not in terms say that administrative charges are charges that ISPs pay only in their capacity as authorised persons, that is, in meeting the conditions set by the general authorisation. Article 12(1) appears simply to identify a class of person, namely, ‘an undertaking providing a service or a network under the general authorisation or to whom a right of use has been granted’. No charges of an administrative nature may then be imposed upon such persons, if such charges fall, and fall substantially, on persons of that description ….”
“193. They are not ‘administrative charges’ at all. ISPs do not pay ‘relevant costs’: they will incur such costs internally in order to discharge statutory obligations under the DEA. The Costs Order is simply a means by which ISPs can recover from copyright owners a (substantial) proportion of internal costs that ISPs have had to incur. The DEA could have left ISPs to bear such costs entirely and have provided no mechanism for recovering any part of such costs. However, Parliament provided that in fairness copyright owners should reimburse ISPs for a substantial part of the costs incurred by ISPs in discharging their obligations under the DEA.”
“195. Similarly, it does not seem to me that ‘case fees’ can be regarded as ‘administrative charges’ under Article 12 AD. The fees arise because a subscriber has brought a specific appeal, involving a relevant ISP and a relevant copyright owner. The fees are intended to do no more than ensure that the judicial vehicle for resolving disputes under the DEA is adequately funded.”
“201. The Claimants also argue that the proposed exclusion of small-scale ISPs from the scope of the initial obligations is “discriminatory” under Article 6 of the AD (assuming that the AD applies at all to the contested provisions). However, it appears from the evidence that Ofcom proposed the initial qualifying threshold of 400,000 subscribers as a starting point because it represented a proportionate response. The six ISPs who have more than 400,000 subscribers together account for 93.4 per cent of the residential and SME business broadband market. There is a natural break point below the big six, in that the smallest of the big six is still twice the size of the next in line. In my view, it is reasonable and proportionate to concentrate on the larger ISPs in the first instance, and to identify any other individual ISPs where there are high levels of copyright infringement on a case by case basis. Any alleged ‘migration’ of infringers to smaller ISPs is speculative at this stage and could be addressed if it began to present real problems. 202. As to the exclusion of mobile network operators (‘MNOs’), the evidence shows that mobile networks are less conducive to online copyright infringement due to technical features such as speed and capacity constraints, traffic management policies, and pricing relative to fixed lines. Internet traffic carried by MNOs represents only a very small proportion (less than 5 per cent) of the overall file-sharing problem. It was therefore considered disproportionate to include MNOs at the present time and this appears to me to be a legitimate policy choice for the Defendant to make, having regard to proportionality. In any event, under the DEA Ofcom has a statutory obligation to monitor levels of online copyright infringement. Ofcom could be expected to alter the qualification criteria in the Code as necessary in future notification periods, to bring within the scope of the obligations in the Code any ISP, whether fixed or mobile, where the scale of infringement is such that inclusion in the Code was justified.”