OUT-LAW News, 20/07/2011
Countries that block internet access on copyright infringement grounds are stifling freedom of expression and the free flow of information, according to a new report on the internet and freedom of speech.
The Organisation for Security and Co-operation in Europe (OSCE) said that website blocking was ‘an extreme measure’ that countries should not use as a means of punishment. The OSCE is made up of 56 member countries and aims to identify, prevent and solve areas of political, economic and other areas of conflict.
‘As blocking mechanisms are not immune from significant deficiencies, they may result in the blocking of access to legitimate sites and content,’ the OSCE said in a report (233-page / 1.88MB PDF) on Freedom of Expression on the Internet.
‘Further, blocking is an extreme measure and has a very strong impact on freedom of expression and the free flow of information. Participating States should therefore refrain from using blocking as a permanent solution or as a means of punishment,’ the report said.
‘Blocking of online content can only be justified if in accordance with these standards and done pursuant to court order and where absolutely necessary. Blocking criteria should always be made public and provide for legal redress,’ the report said.
Freedom of expression is a fundamental human right guaranteed in the European Convention on Human Rights and in the UK by the Human Rights Act.
In the UK provisions within the Digital Economy Act allow the Culture Secretary to draw up new regulations that would see courts decide whether to force ISPs to block access to pirated copyright works.
The DEA also allows Ofcom, the UK’s communications regulator, to draw up new regulations to detail how internet service providers (ISPs) should be involved in attempts to stop copyright infringement.
In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.
Details of illegal filesharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers, it said.
The Government is expected to approve Ofcom’s draft code next year.
BT, the largest UK ISP, is also currently fighting a court battle against the Motion Picture Association (MPA) arguing that it should not have to cut off its customers’ access to a copyright infringing website.
The MPA is challenging BT under Section 97A of the Copyright, Designs and Patents Act and is seeking a court injunction against BT to compel it to act.
Section 97A of the Act gives the High Court, or in Scotland the Court of Session, the power to grant an injunction against a service provider if it had ‘actual knowledge’ that someone has used its service to infringe copyright.
The Act does not specify what purpose an injunction must serve. Section 97A implements the requirements of the EU Copyright Directive which states that countries must ensure that copyright holders have the right to apply for injunctions against intermediaries, such as ISPs, whose services are used to infringe copyright.
Blocking measures also exist in other countries. In France a controversial ‘three strikes’ policy currently exists where a court can punish serial copyright infringers by ordering ISPs to disconnect them from the internet for up to a month.
A voluntary agreement between ISPs and copyright holders in the US was also recently formed which could result in ISPs slowing or blocking customers’ web browsing.
The OSCE criticised its members that do not have measures in place to ensure net neutrality. Net neutrality is a principle which ensures that ISP customers have the right to access all online information equally rather than having easier access to content from companies that have paid their ISP.
‘Network neutrality is an important prerequisite for the Internet to be equally accessible and affordable to all,’ the OSCE report said. ‘It is, therefore, concerning that over 80% of the OSCE participating States do not have legal provisions in place yet to guarantee net neutrality.’
‘Users should have the greatest possible access to Internet-based content, applications, or services of their choice without the Internet traffic they use being managed, prioritized, or discriminated by the network operators,’ the report said.
The OSCE also said that countries must ensure that their residents can access the internet.
‘Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the internet is guaranteed,’ the OSCE report said.
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