Clause 18, DEB redux

However first, because several people have asked, a few words (ha!) on the newly published government version of clause 18 of the Digital Economy Bill on website blocking (formerly amendment 120a). (NB this is not an amendment of the old cl 18 – it is entirely withdrawn and a new section inserted. It is not clear to me what this new section would be numbered but it is not 97B of the CDPA (edited))

Mainly because most (sensible!) people are only reading the accompanying letter from Mandelson, and not the text itself, the new version is getting a fairly good reception in some parts. The new section itself is however, like the famed curate’s egg, good and bad in parts, but overall a complete waste of time, and should be dropped entirely before the election. Let me go through some points.

First, the original amendment 120a (as famously drafted by the BPI) defined an online location as ” a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,”

and then essentially added a power for the courts to force ISPs to block such.

Now we have a power to block (subs(4))

“(a) a location from which a substantial amount of material has been, is
being or is likely to be obtained in infringement of copyright,
(b) a location at which a substantial amount of material has been, is
being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to
facilitate access to a location within paragraph (a) or (b).”

Notice all these “likely”s? Much much wider. In essence this is a power in principle to block any site on the Internet, any search engine and any P2P clent site, however legal. Of course the govt will say this is limited by all the other things a court has to consider before making an order. Which is true. But there seems no reason at all to make this definition so much wider, especially given the government’s ostensible purpose was to narrow the scope of clause 18 and make it “enforceable”.

If you recall previous posts on this matter, my principle worry was that the safeguards on court orders under am 120a as-was would in fact be entirely irrelevant, as requests would simply be made for ISPs to block by rightsholders, without any need to go to court. Why would an ISP agree to do this? Well in the original version of 120a, because if they refused to block on demand, and things went to court, all the costs of the action would be dumped on the ISP – despite the fact they are merely piggy in the middle here between rightsholder and alleged infringing site.

Mandelson pledges in his open letter that this has now been changed in the interests of due process. To quote, “ISPs should not be expected to pay court costs” .

Great! but if you look at the actual regulations, all it says in subs (7)(c) is that there MAY be regulations to this effect. Or there may not. Nothing may be said in the regulations (quite likely, quite usual) in which case it will be left to courts to develop their own rules – and who knows how that might go. The Norwich Pharmacal jurisprudence on allocating costs where ISPs are asked to disclose subscriber identities might be adopted – or might not. Still pretty risky therefore for ISPs to force the obtaining of an injunction, and still likely to incentivise extra-legal website blocking by all but the most committed ISP (read for the big 6: Talk Talk?).

Which leaves me wondering why the amendments that were proposed by the Lib Dems at 3rd reading, to try to control pre-judicial blocking, and which were backed generally by civil liberties groups, are conspicuously NOT in the list of things to be included in the future regulations, either optionally or mandatorily.

No specification of what form a notice requesting blocking should take (a la DMCA) so an ISP can at least find the right site (or part of a site) and know the request comes from genuine rightsholders, with genuine grievances, and not A N Other. No need to notify a site if it is blocked without court order. And no provision for a site to go to court and demand it be unblocked or at least demand to know why it has been blocked (“stay up” a la DMCA “put back” . A model for these already existed. Why has it been pointedly ignored in favour of a profusion of “mays” and “likely”s?

As I have noted before, an ISP will not disclose the ID of a subscriber in the UK without a court order for fear of breaching the Data Protection Act. Isn’t access to an entire web site or a search engine or mobile operator for *everyone*, arguably more important than one person’s anonymity? The comparison makes this all seem very strange. Would we be happy if BT
could randomly decide to block phone numbers because it (or someone else) suspected the owners of those numbers of crimes, or even of the likelihood they would one day commit crimes?

But frankly if there’s to be first-stage consultation on this whole huge question of website blocking after the election, why not wait till that time to decide what shape the enabling law, if any, should take? If court ordained website blocking is to be introduced it is a vast and unprecedented step. Maybe the constitutional position of the IWF should be reconsidered at the same time? Certainly its practical success in getting ISPs to block sites should be relevant – technical experts have said all along that most UK ISPs can’t, in fact, reliably block at all. So should the new EC draft Directive on web blocking for child porn, announced yesterday. This is all completely cart before horse now. Cl 18 should simply be withdrawn for now, and stop wasting everyone’s time in the run up to Big E-Day.

Finally all this is given especial piquancy by the fact that the English High Court, in an important case called Newzbin yesterday, decided, on its first encounter with s 97 A CDPA blocking (oh don’t ask), that blanket blocking orders – asking a search engine site to block access to all sites and files everywhere – as opposed to an orders to block access to particular named copyright works which were being , demonstrably, being downloaded in reach of copyright, is illegal. This principle makes it look very likely that the new clause as proposed has in fact just been declared unlawful by the courts. To quote Kitchin J:

I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants’ copyrights in relation to their repertoire of films. “

Parliamant can, of course, over rule the courts. Parliamentary supremacy rules OK. But really, given the vast mess the DEB and clause 18 has become, should it? Can’t we wait till after the elcection and sort the whole damn thing out then with proper attention, research, consultation and decent drafting, as opposed to lobbying, intrigue, hurry and back room deals?

As a mere academic, that’s how I’d like to see the legal system run. But what do I know? 🙂

EDIT: Apparently not alone in this – as I pressed PUBLISH this appeared ! See Guardian, lawyer Robin Fry quoted:

“It‘s alarming that these blocking injunctions are to be wheeled out against websites and search engines which are not contravening any laws,” says Fry. “This is a chaotic response to massive industry pressure.”