Website blocking part 2: Newzbin2 and the costs of due process

Last week the BPI, apparently with a coalition (or gang, or cabal, or flock – perhaps even a ‘disaster’ – pick your preferred collective noun) of other rights holders, asked BT to block access to the Pirate Bay. This follows the court decision (the detailed order is here) that handed film studios an injunction against BT that forced the ISP to block access to the website Newzbin2.

The BPI are citing the Newzbin judgement as a precedent that they argue should lead to BT voluntarily blocking the Pirate Bay. The move helps to demonstrate the precarious position that ISPs are now in. Their willingness to dig in to their own legal budgets is now almost a proxy for due process.

BT deserve great credit for making sure that the requests to block Newzbin have been through the courts. Now they are facing immediate calls to extend blocking to new sites. So far BT have said that ‘in line with the Newzbin judgment, a court order will be needed before any blocking could begin’.

A crucial feature of the Newzbin2 injunction was a previous court case that established that Newzbin were secondary copyright infringers. (You can read ORG’s legal analysis of this original case here.) As James Firth points out on his blog, without such a judgement, its hard to see how there’s an easy read-across to new cases unrelated to Newzbin.

Perhaps the presumption is that pressure from requests to block voluntarily, along with the threat of costs for challenging blocking requests, will incentivise ISPs to be more receptive to developing a streamlined, voluntary scheme through the process hosted by the Minister Ed Vaizey MP, and which we posted about below.

But proper due process is for life, not just for private reassurances in policy makers’ ears – especially when it is the principles of freedom of expression that are at stake. The cost of due process should not be used as a mechanism for speeding up the process of getting websites blocked. Whatever you think of the Pirate Bay, the dangers of allowing private interests to conspire to block access to a site should be obvious.

The Judge in the Newzbin injunction hearing seemed very clear that rights holders would handle the injunctions very responsibly. I’ve been thinking over how responsible use of a quite specific injunction includes using it to ask ISPs to block other sites. I’ve not figured that out yet.