The government will have to rethink how to protect online copyright goods if the judicial review scheduled for next February rules that the controversial Digital Economy Act (DEA) fails any of four legal tests.
The UK's two largest internet service providers, TalkTalk and BT, took the government to the High Court in July claiming that the sections dealing with online piracy were unfair and changed ISPs' position as "mere conduits" of information.
TalkTalk's director of strategy and regulation, Andre Heaney, told Computer Weekly that the providers had asked the court to review the DEA on four grounds.
These were that the government had failed to inform the European Commission of its actions, that the Act failed to comply with EU directives on privacy and e-commerce, that it lacked proportionality, and, in other words, that it was unfair.
Heaney said the court had granted the review on the first three grounds, and delayed judgment on the fourth because it depended on a code of practice being developed by Ofcom and agreed by the government and industry.
The code was meant to be announced this week, but has been delayed, he said.
The decision to hold the hearing means the DEA's piracy provisions may not come into force until March next year, and even later if the government has to redraft the section, said Heaney.
He said ISPs were preparing to spend big money to conform to the provisions, but this would be put on hold in case the court held that the privacy provisions were invalid.
He stressed that the hearing would deal with Sections 3 to 18 only of the file-sharing segment of the Act.
The government, the opposition and BT did not respond to requests for comment.