A trio of Court of Appeal judges are expected to give their ruling today as to whether a decision by the High Court supporting the controversial Digital Economy Act can be overturned. BT and TalkTalk, two of the country's largest ISPs, had objected to the legislation claiming it breached EU directives. Today, however, they find themselves in a new controversy.

In March 2011, the High Court began a judicial review of the controversial Digital Economy Act (DEA). The review was ordered after the legislation, which was rushed through during the final hours of the previous Labour government, was met with complaints from two of the UK’s biggest Internet service providers, BT and TalkTalk. The pair question whether the Act was enforceable under current EU legislation.

In April the High Court’s Justice Kenneth Parker sided with the government and “upheld the principle of taking measures to tackle the unlawful downloading of music, films, books and other copyright material.”

In October, BT and TalkTalk were given permission to appeal, with Lord Justice Lewison stating that the ISPs should be allowed to argue that the Act “was enacted without following proper procedures and that it may breach the EU’s E-Commerce Directive, Privacy and Electronic Communications Directive, Data Protection Directive, Authorization Directive.”

As long as certain conditions are met, under EU law Internet service providers are not liable for the data carried over their networks, a situation known as the “mere conduit” defense. But today it’s being claimed that staff from both BT and TalkTalk gave advice to customers that they knew had intentions of breaching copyright.

According to a ThisIsMoney report, ‘mystery shoppers’ were asked to call ISPs asking questions about using file-sharing sites.

Perhaps conveniently considering developments due in court today, the allegations focus on advice given by BT and TalkTalk staff. However, based on the information given in the article, first impressions suggest that only one call is worthy of immediate attention and the rest seem potentially overblown.

During that call, made to BT, the ‘customer’ says they want to use Pirate Bay or isoHunt to download movies such as Harry Potter or Cars 2. The BT staff member allegedly noted that the films could be downloaded from those sites “in less time than it would take to watch the film”.

In another call to TalkTalk, the investigators claim that the customer services operator admits to using BitTorrent himself and says that The Pirate Bay would perform best with an ‘unlimited’ broadband package. But there are millions of items on The Pirate Bay, plenty of them legal, and the advice is good, piracy hasn’t been condoned and certainly no laws have been broken.

The report goes on to state that “a string of similar calls elicited no warnings about the potential illegality of such activity” and in every call “the use of such sites is mentioned clearly by the caller as a reason for signing up to a faster broadband package.”

While the initial item which references specific copyright works might be problematic, it is not up to an ISP to attempt to police customer activity or predict which content someone might access on The Pirate Bay. It is certainly not up to telesales operators to try and understand the intricacies of copyright law and then give impromptu advice in response to casual comments by ‘customers’.

Both BT and TalkTalk say that they only want customers to use the Internet for legal activities but Geoff Taylor, chief executive of the BPI who have been critical of the ISPs’ opposition to the Digital Economy Act, says what has happened is unacceptable.

“It is shocking if broadband providers have been boosting their revenues selling broadband to customers who make it clear they intend to break the law,” he said. “This is not the behavior we should expect from responsible companies.”

As highlighted earlier, the information provided in the report is not exactly detailed, so it will be interesting to read the full transcripts of the calls – we’ve asked for copies from the editor and we’ll report back should we received them.

Later today, appeal judges Lady Justice Arden, Lord Justice Richards and Lord Justice Patten will give their decision on the future of the Digital Economy Act and announce whether BT and TalkTalk have been successful.