CyberLaw Blog

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Archive for August, 2011

Digital Economy Act’s copyright provisions should be repealed, Lib Dem policy proposal says

Wednesday, August 24th, 2011

Digital Economy Act’s copyright provisions should be repealed, Lib Dem policy proposal says: “Copyright laws set out in the Digital Economy Act (DEA) are ‘deeply flawed and unworkable’ and should be abolished, a Liberal Democrat policy proposal has said.

(Via OUT-LAW News.)

Domain Seizures Do Not Violate Free Speech, U.S. Court Rules

Saturday, August 6th, 2011

Domain Seizures Do Not Violate Free Speech, U.S. Court Rules: “

A U.S. federal court has ruled that the domain seizure of sports streaming site Rojadirecta does not violate the First Amendment, and has refused to hand the domain back to its Spanish owner. The order stands in conflict with previous Supreme Court rulings and doesn’t deliver much hope to other website owners who operate under U.S. controlled domain names.

rojaAt the end of January 2011 the U.S. authorities began yet another round of domain seizures, this time against sites connected with sports streaming. This third round of action in ‘Operation in Our Sites’ took control of domains owned by sports streaming site Rojadirecta.

While most owners of affected domains have decided not to appeal the seizures, the Spanish owner of the Rojadirecta, one of Spain’s most popular sites, did.

Two months ago the company behind the site, Puerto 80, filed a petition in the Southern District of New York for the return of its domains. This call was later supported by the Electronic Frontier Foundation (EFF) who together with Center for Democracy and Technology and Public Knowledge submitted an amicus brief in support of the Spanish company.

Yesterday, United States District Court Judge Paul Crotty decided to deny Puerto 80′s request, which means the domain will remain in the hands of the U.S. Government. The Judge argues that seizing Rojadirecta’s .com and .org domains does not violate the First Amendment of the Constitution.

‘Puerto 80’s First Amendment argument fails,’ the Judge writes.

‘Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the ‘forums’ on its websites, which may be accessed by clicking a link in the upper left of the home page. The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.’

The Judge further ruled that the claimed 32% decline in traffic and the subsequent harm to Puerto 80′s business is not an issue as visitors can still access the site through foreign domains. Puerto 80′s argument, that users may not be aware of these alternatives, was simply waived.

‘Rojadirecta argues that, because ‘there is no way to communicate the availability of these alternative sites on the .org or .com domains . . . the vast majority of users will simply stop visiting the sites altogether.’ This argument is unfounded — Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain names to its customers,’ the Judge writes.

‘In addition, Puerto 80 does not explain how it generates profit or argue that it is losing a significant amount of revenue as a result of the seizure. Specifically, Puerto 80 states that it does not generate revenue from the content to which it links, and it does not claim to generate revenue from advertising displayed while such content is playing,’ Judge Crotty adds.

From the above the Judge concludes that the drop in visitor traffic due to their seizure does not establish a substantial hardship, and therefore no reason exists to return the domain.

This line of reasoning goes directly against previous rulings in First Amendment cases. As the EFF points out, in two earlier Supreme Court decisions it was concluded that having alternatives available does not mean that freedom of speech isn’t violated.

According to the EFF, the peculiarities of the ruling don’t end there.

‘As if misapplying the relevant substantive First Amendment analysis wasn’t bad enough, the court failed to even address the fatal procedural First Amendment flaws inherent in the seizure process: namely, that a mere finding of ‘probable cause’ does not and cannot justify a prior restraint. How the court believes that the seizure satisfies the First Amendment in this regard is a mystery,’ they write.

The decision of District Court Judge Paul Crotty to stand firmly behind the Government is worrying for all other websites who operate under U.S. controlled domains. It’s yet another step in granting the Government and copyright holders more control over the Internet, at the expense of smaller businesses and the rights of citizens.

The Order

Source: Domain Seizures Do Not Violate Free Speech, U.S. Court Rules

(Via TorrentFreak.)

Site Blocking: What the UK Government would prefer you not to see

Thursday, August 4th, 2011

Site Blocking: What the UK Government would prefer you not to see: “

It’s well known that internet blocking is easy to circumvent. Ofcom in today’s report ‘Site Blocking’ to reduce online copyright infringement admits as much, saying that:
For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users. (p.5)

Despite this, however, one branch of the UK Government still appears determined to keep its head in the sand, and according to that report:

The Department for Culture, Media and Sport has redacted some parts of this document where it refers to techniques that could be used to circumvent website blocks.

Unfortunately, the technical competence of the DCMS appears to be somewhat limited, and the sophisticated redaction was (ironically?) also easily circumvented by copying and pasting from the PDF. Here are the portions of the report which the DCMS attempted to quash. Text in italics was not redacted but appears for context:

pp.28-29

Robustness

Bypassing IP address blocking is technically straightforward for those who have an incentive to do so.
The blocked site operator may:

• change IP address but stay on the same network (i.e. on the same hosting provider);
• move to an entirely new network (to a previously unobserved IP address);
• offer encrypted network services which obscure the true network address/destination such as Virtual Private Networking;26,27 or
• server operators may institute a Fast Flux network (where users run software on behalf of blocked site which hides the true network address of the blocked site).

There are other methods available to site operators. When moving to a new IP address a site operator may register multiple IP addresses for a given site in order to maintain service in the event that some of those individual IP addresses are blocked. This approach has legitimate purposes also.28 Furthermore, by setting a low ‘Time to Live’ (TTL) Domain Name System (DNS) record value, determining the length of time that the IP address for a particular domain (expressed in seconds) remains in remote name server caches, it is easier for a site operator to move IP addresses without end users losing access. Where a low TTL is expressed the ISP DNS name server resolution cache is purged quickly thereby ensuring that newly assigned site IP addresses are retrieved from the authoritative name server and site accessibility is maintained. Figure 13 below shows that the TTL value for ‘kickasstorrents’ is one hour, demonstrating that any changes to IP address to DNS name are refreshed and propagated within ISP DNS servers in just over an hour.

Figure 13: Kickasstorrents DNS record Time to Live (1 hour) Name TTL Class Record Address
www.kickasstorrents.com. 3600 IN A 95.215.60.37
www.kickasstorrents.com. 3600 IN A 93.114.40.112
www.kickasstorrents.com. 3600 IN A 193.105.134.81
www.kickasstorrents.com. 3600 IN A 95.143.195.138
www.kickasstorrents.com. 3600 IN A 76.76.107.90

26 Ipredator – Surf anonymously with VPN and proxy https://www.ipredator.se/?lang=en
27 UK based VPN services facilitating access to copyright infringed material may be subject to site blocking injunctions. UK VPN operators may institute site blocking at the VPN egress point. NB: we are not aware of any UK based VPN service marketed or positioned for such activity. Such services are likely to be non-UK based.

pp.33-34

DNS blocking robustness

For site operators and end users with a sufficient incentive to engage in circumvention DNS blocking is technically relatively straightforward to bypass:

• the blocked site may offer services such as Virtual Private Networking, which is where encryption and other security measures are deployed to ensure that the data cannot be viewed by third parties (DNS name resolution may occur within the VPN providers network thereby bypassing the ISP based DNS site-blocking);
• the end-user can change their DNS name servers to 3rd party DNS name servers;32,33
• users may use anonymous web proxy or other anonymising services which are not reliant on the ISP DNS servers; or
• name resolution may be performed locally by adding an entry to a hosts file (IP address resolution information can be obtained from websites running a web-enabled equivalent of ‘nslookup’ command).

32 Google Public DNS – http://code.google.com/speed/public-dns/
33 OpenDNS Store > Sign up for OpenDNS Basic: – https://store.opendns.com/get/basic/

For end users who want to bypass blocks there are several options. For instance, there are many legitimate alternative DNS providers to ISP DNS registries. Examples include OpenDNS and Google DNS. We consider the changing of DNS servers to alternative providers to require low technical skills, as the providers offer clear instructions using plain English. For instance, switching to Google DNS requires 11 steps for Windows users and only 8 for those using MAC OS.

With a modest understanding of internet technologies it is possible to access a site by entering the site IP address (if multiple websites are hosted at the same IP address the user will be displayed the default web site or page for that web server/IP address). Site operators can draw attention to online web based and alternative sources of DNS name resolution within emails to their user base or via online forums.

Other channels that site operators could use to widely distribute advice on how best to circumvent DNS blocking could include posting to online forums, Really Simple Syndication (RSS) or updates via micro blogging sites such as Twitter ®. The advice could include changing to unblocked DNS name servers, Virtual Private Networks and proxy services or other anonymising systems. Similarly, site operators may quickly mirror or make copies of a blocked site on new top level or country code domains pointing towards new IP addresses e.g. www.blockedsite.cc; www.blockedsite.ru; www.blockedsite.vn; www.blockedsite.net.

p.38

Techniques that may undermine URL blocking include:

• web site operators providing encrypted access to their web sites via Secure Sockets Layer/ Transport Layer Security i.e. https connectivity https://www.example.com/downloads/pirate.zip;
• a site operator may run a website on a network port other than port 80;
• the site operator changing the IP address and bypassing the network routing announcements;
• a site operator registering a new domain name e.g. www.example.net or www.example.org;
• the blocked site offering services such as Virtual Private Networking;
• the use of anonymous web proxy or other anonymising services;
• the site operator reorganising the site structure if the blocking is conducted against specific URLs; and
• the site operator or end user encoding URLs to bypass blocking.

p.40

Packet inspection blocking robustness

Both shallow and deep packet inspection can be bypassed by site operators using the following means:

• changing the IP address but staying on the same network;
• moving to an entirely new network (to a previously unobserved IP address);
• the site may use network encryption techniques such as Virtual Private Networking to render scrutiny of the IP packet‟s payload or real IP address destination impossible, given the technology available today; or
• the site operator may add or remove site IP addresses from a pool of IP addresses.

End users who wish to circumvent packet inspection may opt to use anonymous web proxies or other anonymsing services.

p.41

As with the deployment of any of the single primary techniques, the hybrid approach is also susceptible to circumvention by the use of anonymising tools such as The Onion Router, VPNs or anonymous proxy services.

p.52

Technical Glossary

Anonymous Web Proxy Service that allows users to place web requests via an intermediary server. The proxy server makes the connection on behalf of the user thereby hiding originating IP address and bypassing blocking network techniques.

The Onion Router (ToR) Anonymity network originally developed by the United States Navy. Used in many countries to bypass state censorship.

Needless to say, a department which is unable to censor a single PDF does not exactly inspire confidence when it proposes to introduce blocking for the entire UK internet, and it is just as well that the UK government has today announced plans to abandon the blocking provisions of the Digital Economy Act.

(Via http://www.tjmcintyre.com/feeds/posts/default.)

UK Govt. Censors Concerns of Erroneous Piracy Allegations

Thursday, August 4th, 2011

UK Govt. Censors Concerns of Erroneous Piracy Allegations: “

Yesterday the UK government announced that following a report from regulator OFCOM, plans to block alleged copyright-infringing websites would be dropped. However, there was a second report where OFCOM detailed ways of keeping the costs of Digital Economy Act infringement appeals down. The document carried the usual redactions but TorrentFreak has put on its X-ray vision for your viewing pleasure.

Yesterday, detailing the government’s response to the Hargreaves report, business secretary Vince Cable confirmed that the website blocking provisions put in place under the controversial Digital Economy Act will be discontinued. The decision coincided with an OFCOM report which noted that website blocking would not be effective.

OFCOM also released a second report titled Digital Economy Act, Online Copyright Infringement Appeals Process: Options for reducing costs.

On the front page of the report there is a note that redactions have taken place to censor sections relating to ‘on-going policy development’ of the Department of Culture, Media and Sport.

The DCMS did a better job of hiding the blacked-out text than earlier in the week but not so good as to keep out TorrentFreak and our X-ray specs.

The first redaction on Page 3 says simply ‘Revisit the grounds for appeal set out in Ofcom’s draft Initial Obligations Code’ but two pages later things start to get much more interesting. It seems the government (or more likely their friends in the copyright lobby) doesn’t want talk of an error-prone system becoming public.

Page 5 – OFCOM wants rights holders’ accusations to be ‘quality assured’

Ofcom has also sought to ensure efficiency by introducing into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. This should help to reduce the number of wrongly identified infringements and subscribers. (ISPs can also have some impact here by ensuring that the letters they send to subscribers make clear the implications of receiving a notification).

A ‘quality assurance process’ sounds like a great idea, but who could be trusted to implement such a regime and ensure independent scrutiny? Anti-piracy tracking companies are notoriously secretive and unlikely to be open about the short-comings of their ‘proprietary systems’.

Page 11 – Government rejects OFCOM suggestion of subscriber appeal ‘on any reasonable grounds’

The grounds set out in the Act are non-exhaustive and we reflected this in our drafted Code by including an option to appeal on ‘any other reasonable ground’. This was intended to provide an efficient mechanism through which to avoid a lengthy revision of the Code should subscribers find additional, but reasonable, grounds for appeal as technologies and consumer behaviours evolve.

We understand that Government believes we should not include this mechanism in the final Code

It is far from clear why the government wishes to remove the right for a citizen to appeal a wrongful accusation on ‘any reasonable ground’. What is clear, however, is why the government might wish to redact this statement from the report – it looks very bad indeed.

Page 11 – ISP IP address matching to be ‘quality assured’

We have also introduced into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. We are proposing to sponsor a similar standard for the IP address matching processes of the ISPs, although participation will be voluntary. This should help to reduce the number of wrongly identified infringements and subscribers (appeal grounds (a) and (b)). We anticipate that the majority of appeals will rely on ground (c) in the absence of systematic failures by a Copyright Owner or ISP under the Code.

When it comes to copyright infringement cases ISPs make errors so it is good they will be required to adopt similar ‘quality assurance’ processes as rights holders. However, how many will choose to do so when participation is voluntary remains to be seen.

Redactions on page 17 merely repeat details covered in earlier redactions. Redactions on page 19 likewise, save a comment that a rightsholder ‘quality assurance’ process

….does not create a rebuttable presumption in favour of the rights holder but should help bring down the proportion of incorrect CIRs [Copyright Infringement Reports] and therefore appeals costs since there are likely to be fewer meritorious appeals in this respect. This quality assurance is also intended to make sure that the number of CIRs rejected by ISPs for process reasons is minimised

The full but redacted document can be downloaded here.

Source: UK Govt. Censors Concerns of Erroneous Piracy Allegations

(Via TorrentFreak.)

New website blocking regulations not on the agenda, British Government says

Thursday, August 4th, 2011

New website blocking regulations not on the agenda, Government says: “The Government has sidetracked plans to create new website blocking laws following a recommendation from the UK’s telecoms regulator.

(Via OUT-LAW News.)

Individuals will have to pay to contest copyright infringement warnings, British Government says

Thursday, August 4th, 2011

Individuals will have to pay to contest copyright infringement warnings, Government says: “Internet users who risk being blacklisted as illegal file-sharers will have to pay £20 to appeal against warning letters they receive about their behaviour, the Government has said.

(Via OUT-LAW News.)

British Government scraps plan to block illegal filesharing websites | guardian.co.uk

Wednesday, August 3rd, 2011

Government scraps plan to block illegal filesharing websites | guardian.co.uk

Business secretary Vince Cable says site blocking is too cumbersome and unworkable, and work is being done on other ways to tackle online copyright infringement

Mark Sweney
guardian.co.uk, Wednesday 3 August 2011 11.37 BST

Vince Cable on Wednesday scrapped plans to introduce the blocking of illegal filesharing websites, arguing the a scheme proposed by last year’s Digital Economy Act is too cumbersome and unworkable, but said that some form of plan to bring down piracy sites is still being worked on.

A consultation document, launched by Cable, said that ministers intend to do more work on what other measures can be pursued to tackle online copyright infringement in an effort to stop widespread music piracy, which is increasingly spreading to television and film.

The business secretary said that people will also be able make copies of music and other media for personal use, confirming well-leaked plans to relax the current law that makes it illegal to copy the contents of a CD they own onto an iPod or other digital device.

‘This brings the law into line with, frankly, comon sense,’ said Cable, responding to the Hargreaves report on the future of UK copyright law, which recommended the changes back in May 2011.

‘A lot of this has to do with consumer freeedom. We need to have a legal framework that supports consumer use rather than treat it as regrettable. We can’t say that businesses should embrace technology but say to consumers they can’t use technology for products they have paid for.’

However ,Cable was not able to give detail on whether the new rules would apply to consumers using cloud services to store digital content on their portable media players, such as those launched by Google and Amazon in the US, adding that it would only apply for devices on a limited basis without infringing European law.

Cable recognised that more needs to be done to crack down on illegal filesharing to protect the copyright holders, but nevertheless backed down on introducing site blocking legislation to the DEA. ‘Music and film makers have to be able to take effective and justified measures,’ he said. ‘The basic philosophy is we do recognise the need for protection, but it has to be protection that’s proportionate to needs and based on evidence.’

Ed Vaizey, the communications minister, said that the existing measures were too cumbersome and unworkable to have a real impact. He said that a specially commmissioned Ofcom report into the feasibility of site blocking legislation proved that it was too elaborate and complicated to go through, adding: ‘We haven’t said no to site blocking per se, forever.’

Rights holders have heavily lobbied for the introduction of site-blocking legislation to curb digital piracy. However, Vaizey said that last week’s landmark high court ruling, which forced BT to cut off access to mass-piracy site Newzbin2, showed that there is a route forward if rights holders want to take it.

But he acknowledged that the court process can take a long time, pointing out that the system can never cope with an illegal website launching on a Friday to cash in on a live sport event and then disappearing on Sunday. ‘One of the things that is frustrating for rights holders is the length of time it takes for a court process,’ he conceded.

Vaizey has been aiming to broker a fast-track legal process for site blocking by holding a series of meetings between rights holders. The talks aim to find common ground so both sides can agree in advance if a website is in fact infringing copyright – as well as protect ISPs from any repercussions if rights holders are wrong in their allegations – so that long-winded and costly court cases can be avoided.

‘One of the things I’ve enabled is conversations between ISPs and rights holders,’ he said. ‘I want to see if ISPs and rights holders can come to agree a process to get facts together before going to court. The key point is up to court to make a [final] decision’.

Ministers still have available the ultimate sanction of disconnecting serial pirates, although under the DEA, they have to examine a variety of less penalties before they can introduce disconnection.

Initially, alleged pirates will be sent warning letters that identify them as being serial illegal downloaders from the second half of 2012 – more than a year later than originally anticipated.

Fearful that there could be thousands of time-consuming appeals by receipients of the letters, ministers said that consumers who wish to appeal will have to pay £20, in an effort to deter frivilous claims. The amount will be refundable if somebody receiveing a letter can prove their innocence.

The government has also asked Ofcom to begin establishing benchmarks and data on trends in online infringement as soon as possible.

Cable also said that plans for an Amazon-style digital copyright exchange, to create a kind of one-stop-shop for easily buying and selling rights, have been accepted in principle. The government has launched a feasibility study to see how the exchange will work.

‘[It will] serve as a genuine marketplace independent of sellers and purchasers, for example on the model of independent traders using Amazon.co.uk to sell goods, rather than simply being an aggregated rights database,’ the government said in its response to Hargreaves’ recommendations.

The government allayed a number of the fears that rights holders have raised, such as that forcing them to join may break European regulations, saying that it will be a compelling proposition to rights holders but not compulsory.

Intellectual property laws around parody, which are considerably more stringent than in countries such as the US, have also been relaxed to allow comedians, broadcasters and other content creators more scope – ensuring that spoofs such as the YouTube hit Newport State of Mind are no longer removed.

Vince Cable: government plans to block illegal filesharing sites unworkable

Tuesday, August 2nd, 2011

Vince Cable: government plans to block illegal filesharing sites unworkable

Mark Sweney and Josh Halliday
guardian.co.uk, Tuesday 2 August 2011 14.02 BST

Vince Cable, the business secretary, will say on Wednesday that government plans to block illegal filesharing websites under the controversial Digital Economy Act are in effect unworkable.

Outlining the government’s response to the Hargreaves report on the future of UK copyright law, Cable is also expected to announce legislation to sweep away restrictive rules on file copying and parody works.

In a speech at the British Library on Wednesday, the Liberal Democrat minister will outline the next steps for the introduction of the delayed Digital Economy Act.

Cable will row back on one of the act’s most contentious measures – introducing legislation to block access to copyright-infringing websites – and instead say that the existing Copyrights, Design and Patents Act is powerful enough.

That follows last week’s landmark high court ruling, which forced BT to cut off access to Newzbin2, a site found to be infringing copyright ‘on a grand scale’.

Cable’s intervention comes as ministers struggle to implement anti-piracy measures outlined by the Digital Economy Act rushed through by the Labour party at the end of its time in office.

The first warning letters to be sent to Britons accused of illegal filesharing are now not due until the second half of 2012 – more than a year later than originally planned.

A series of legal challenges have meant that cutting off the internet connections of serial pirates is unlikely to begin until 2013 at the earliest.

Cable is also expected to announce a ’scoping review’ into the viability of a setting up a digital copyright exchange, one of the key proposals of the Hargreaves report published in May – in effect kicking the idea into the long grass.

The rights exchange, which would effectively be a one-stop shop to make lawful use of copyrighted material easier, received ’serious pushback’ from media companies, according to one industry source. Film and music companies and broadcasters are understood to have raised a number of issues about the proposed exchange, including fears that it may contravene various European regulations by forcing all rights holders to participate. One industry source said that if it was a full ’stock exchange’ trading platform it may not generate as much revenue as selling rights directly.

The government is anticipated to legislate to sweep away many of the UK’s archaic intellectual property restrictions that make it technically illegal to transfer content from CDs or DVDs to other formats, such as iPods. The reforms will also make it legal for Britons to burn copies of music and video files for family members to use, and give legal protection to spoof works.

Cable has previously said that private copying is carried out by millions of people who are ‘astonished’ that it is technically illegal. He said: ‘We need to bring copyright into line with people’s expectations and update it for the modern digital world. This will free up innovative British businesses to develop new consumer technology and help boost economic growth.’

Cable is expected to outline further changes to the DEA, including how costs are apportioned between rights holders and ISPs. The judicial review ruled in April that ISPs should not foot the bill for setting up an appeals body.

Ed Vaizey, the communications minister, is understood to have set a date of mid-September to get ISPs and rights holders to another roundtable meeting aimed at curbing infringing sites voluntarily.

However, many rights holders are dismayed at the delays in implementing the Digital Economy Act. ‘What we would very much like is the government to get on drafting and writing the code that goes with the DEA and to fast-track the legal process so it doesn’t take hundreds of thousands of pounds and a long time to sort these things out,’ said Lavinia Carey, director general of the British Video Association.

England and Wales: blocking website sets bad international precedent · Article 19

Monday, August 1st, 2011

England and Wales: blocking website sets bad international precedent · Article 19

ARTICLE 19: 01 Aug 2011

The High Court’s decision requiring British Telecom to block access to the file-indexing website, Newzbin.com sets a worrying international precedent against the right to freedom of expression.

The decision sets too low the threshold for ordering blocking, fails to properly balance the right to property with the right to freedom of expression, and shows no consideration for the chilling effect such a decision would have. Ordering the blocking of an entire domain name, as opposed to specific webpages, is also likely to breach the requirement for necessity in international law.

Although ARTICLE 19 supports development of clear standards related to online copyright infringement, the judgment of the English High Court on 28 July 2011 sets a worrying precedent which could have a dramatic chilling effect on legitimate online content. It is also highly likely to breach international standards of freedom of expression.

In a landmark ruling, given on 28 July 2011, an English High Court judge held that British Telecom (BT), the UK’s biggest internet service provider (ISP), must block access to Newzbin.com which provided links to pirated movies. The decision to block access to the site was made following an application by several Hollywood studios, who argued that it was the only way they could combat online copyright infringements by Newzbin2.

The judge held that a ‘website blocking’ injunction was available on the basis that BT knew that the users and operators of Newzbin.com ‘infringe copyright on a large scale and in particular infringe the copyrights of the studios in large numbers of their films and TV programmes’. The judge also found that BT subscribers were among those using Newzbin.com to receive pirated copies of the studios’ films and TV shows.

ARTICLE 19 notes with concern that the judge granted the ‘website blocking’ injunction not only in relation to the studios’ own films but also those of third parties who were not involved in the case, on the basis that there was no reason to believe that they would not support it. The judge accepted that the order would also prevent BT subscribers from making use of Newzbin.com for legitimate purposes, but considered that there was little evidence that the site was being used in this way.

The court concluded that the intellectual property rights of the rights holders ‘clearly outweighed’ the freedom of expression rights of the users of Newzbin.com, and ‘even more clearly’ those of the operators of Newzbin.com. The free speech rights of BT and its subscribers were also outweighed by the property interests of the studios.

BT had argued that, instead of blocking the entire site, it would be more proportionate for the studios to provide a list of specific URLs (webpages) to be blocked. However, the judge rejected this argument.

ARTICLE 19 believes that the high court order is very likely to breach international standards for the protection of freedom of expression, in particular the principle that any restriction on freedom of expression for a legitimate aim must be proportionate. Today’s ruling gives short shrift to this well-established principle as follows:

In its judgment, the high court failed to carry out a proper balancing exercise between freedom of expression and the right to property. In particular, the judge provided very little reasoning for his conclusion that the intellectual property rights of the studios ‘clearly outweighed’ the free speech rights of BT and its many UK users;

The threshold for granting such a ‘website blocking’ order was set very low, despite its obviously far-reaching consequences. In particular, the studios simply had to show that BT knew that one or more persons were using its service to infringe copyright, and that was sufficient to justify an order blocking the entire site;

Moreover, little or no consideration was given to the chilling effect that the order is highly likely to have on freedom of expression and the free flow of information on the Internet, especially legitimate online content. This is borne out by the overly broad terms of the order sought, which is directed to the website’s domains and sub domains rather than specific URLs deemed illegitimate. In ARTICLE 19’s view, any order seeking to block access to domain names as a whole rather than specific URLs is very likely to breach the requirement of necessity under international law. In this respect, ARTICLE 19 also points out to a July 2011 report by the OSCE Special Representative for Freedom of the Media said that ‘Arguably, the practice of banning access to entire websites, and the future publication of articles thereof (whose content is unknown at the time of access blocking)goes beyond ‘any notion of ‘necessary’ restraint in a democratic society and, instead, amounts to censorship’.

ARTICLE 19 urges the establishment of clear legislative standards in this area in order to strike a fairer balance between the interests of rights holders and Internet users and better protect freedom of expression on the Internet.

NOTES TO EDITORS:

For more information please contact: Gabrielle Guillemin, Legal Officer, gabrielle@article19.org or +44 20 7324 2513
The full text of the judgment can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/twentieth-century-fox-film-corp-others-v-bt.pdf
For the report of the OSCE Special Representative for Freedom of the Media on Freedom of Expression and Internet, see http://www.osce.org/fom/80723