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