Website blocking part 1: two-tier policy making

In September ORG and a number of other groups met with the Minister Ed Vaizey (a meeting that we wrote up here). We spoke about copyright policy and the proposals for a new, streamlined website blocking scheme that he had been discussing in private meetings with rights holders, Internet companies and, more recently, Consumer Focus.

Around the same time, the Minister also held another meeting with this official roundtable group. Thanks to FoI requests to Consumer Focus and DCMS, we have the new proposals for a website blocking scheme and minutes from the meeting. The new suggested scheme is a revised version of the proposals outlined earlier in the year.

In the new proposals there is at least a written commitment to the need some form of due process. But the document doesn’t resolve some of the most fundamental problems concerning what fair due process looks like: the desire to ‘speed up’ the injunction process; the process of classifying the websites concerned through an expert body; the evidence required to do so. With an eye on the due process and the rule of law, we are left with this rather insufficient concession:

“it was recognised that there would need to be legal consideration of the fine details at some point.”

The Minister, according to the minutes released under the FoI, also makes reference to the need to have a list of ’50 or 60 of the most egregious websites’. Only recently the DCMS told us that they have no evidence of the effects of copyright infringement, or of the effectiveness of different ways of dealing with it. Yet the aim is ’50 or 60′ websites. Which ones? Why is website blocking the best way of tackling them? What evidence is there that this is the case?

It is hardly surprising that critical considerations of the public interest are still taking a back seat. The attendees of the meeting, according to the FoI response from DCMS, were:

Campbell Cowie – Ofcom
Adam Smith – DCMS SpAd
Emma Ascroft – Yahoo!
Geoff Taylor – BPI
Richard Mollett – Publishers Association
David Wheeldon – BskyB
Chris Marcich – MPAA
Feargal Sharkey – UK Music
DJ Collins – Google
Theo Bertram – Google
Daniel Wood – UKIE
Rickard Granberg – Talk Talk
Mike O’Connor – Consumer Focus
Mark Gracey – ISPA
DCMS officials X 3
Tim Colbourne – No. 10 SpAd

It is worth remembering that these meetings are designed to establish processes for deciding what information people are allowed to access. If you were to design a group of people to properly consider such ideas and proposals, would it look like that list of attendees?

It falls to Consumer Focus to be the sole voice of civil society. They do a more than fantastic job – and you can read their excellent response to the proposals here  – but they should not be the token interest representing critical views on blocking. They are primarily a consumer representative group. Their presence does not change a fundamental imbalance in the attendees, whether it is the absence of broader civil society interests or legal experts.

One problem here is the model of policy making being used to develop what the Minister hopes will be a form of self-regulation.

As this is not a formal policy or Government regulation, the discussions are proceeding on the basis that the policy makers are merely facilitating other stakeholders reconciling their interests. This becomes a problem when the outcomes of the relationships, codes or measures that stem from these discussions have a detrimental effect on users, consumers and citizens, and when those broader interests do not have their voices represented.

It is about seven days since the Government told us there that interference with freedom of expression online is a matter of the upmost importance. DCMS can live up to these aspirations with a properly open process for developing their policies for the Internet age. This cannot be a two-track policy process, with a lag between Departmental action and their willingness to engage with the full range of stakeholders about it. Self-regulation should not be an excuse for invitation-only policy making.