Briefing to Ed Vaizey: website blocking

Open Rights Group believes that website blocking and the filtering of content should be avoided. Blocking and filtering is bad policy. Serious infringers will continue to infringe and will continue to access the supposedly blocked sites. Blocking can only prevent ‘accidental’ access: a suitable end in regard to personal avoidance, but not if the objective is targeting knowing infringers. As such, it is bad public policy, and will lead to calls for more damaging and intrusive measures.

There are significant risks of over-blocking, of insufficient redress, of damage to innovation and of driving users to more sophisticated forms of encryption and other avoidance measures. Due in particular to the risks of over-blocking and network damage, blocking would harm people’s rights to freedom of expression and access to information.

It will be expensive. We also do not believe that blocking will work to satisfy the key policy objective of growing legitimate digital markets. In short technologies do not solve social problems. Bad laws on the other hand could in this case bring copyright and government into disrepute, as a policy lying somewhere between ‘King Canute’ and Prohibition. Like prohibition, the only sensible answer to bootleg goods is a thriving legal market.

We recognise that there are many ongoing discussions regarding the filtering of content online. We also understand that blocking injunctions can be sought, which require balances as outlined below to be pursued. In this instance, a policy of ‘wait and see’ would be advisable, to allow the benefits and problems with current court processes and improvements to legal supply to be understood.

Should further blocking be pursued, there are five simple ‘tests’ which any blocking measures must pass.

This statement is not meant to abrogate our fundamental rejection, explained briefly above, of the use of blocking as a way of managing undesirable content.

1. Blocking should be evidence-based: This applies in three respects. First, the sites and behaviours that are considered undesirable must be clearly defined. Second, the harmful impact of these sites and behaviours on rights holders must also be clearly defined. Third, the likely effect of the proposed solution and that of alternative solutions must also be clearly defined. Robust levels of evidential scrutiny, which are currently lacking, must be applied. Courts are trained in examining such evidence.
2. Blocking should be proportionate, necessary and the best way of achieving the stated goals: Following the above criteria, any blocking should be necessary as proved by robust and independent evidence. Second, it should be proportionate, based on an assessment of the likely benefits and costs. Third, it should be demonstrably the best means of achieving the stated goal. That goal should be clearly defined. Courts are ideal to apply these balances.
3. Blocking should respect fundamental rights such as freedom of expression: The UK should be taking a lead in developing Internet policies that respect rights such as freedom of expression and privacy, recognising the socially transformative potential of technology. The must be an analysis of the extent to which it is at all possible to have broadly applied website blocking without fundamentally harming freedom of expression.
4. Blocking should be transparent: This applies in two respects. First, proposals for blocking should be developed in the light of public scrutiny through public consultation that draws on the widest range of expertise. Second, the terms on which blocking takes place, the process through which it is implemented, and the resulting list of blocked sites must be transparent and clear. Second, the terms on which blocking takes place, the process through which it is implemented, and the resulting list of blocked sites must be transparent and clear. Only a court can provide sufficient transparency and accountability.
5. Blocking should be implemented through a fair and clear legal process: Because blocking involves fundamental decisions about what information citizens are allowed to access, it is critical that wherever filtering and blocking takes place there should be a clear, robust and fair legal process, including the right for blocked or filtered sites to challenge the block and seek redress. Courts are the appropriate venue.

Current proposals

Proposals to block content for copyright infringement, most recently in the form of rights-holders’ proposed ‘voluntary’ scheme, fall far short of satisfying these tests. We believe that satisfying these tests is an insurmountable challenge for website blocking for copyright infringement.

With regard to the current proposals, we believe they are unworkable and harmful, and certainly fail to meet the criteria laid out above. The problem has not been clearly enough defined. The evidence has not been set out to demonstrate why blocking would address the problem at hand. There is no demonstration of why this would be a proportionate response to that problem.

There is no analysis of the effects on freedom of expression. This is especially problematic where there is a vaguely defined problem and no technical analysis of the likely consequences. There are no proposals to ensure transparency of any future process. Policy development of these ideas has taken place in small stakeholder roundtables; a matter of such public interest must be subject to a proper public consultation.

What looks like a simple industry-led proposal would in fact be a heavy regulatory burden, being expensive, complicated, subject to challenge, lead to harms for people’s rights to freedom of expression and involve bare-bones and insufficient legal process.

In addition to the risks to freedom of expression, other risks from website blocking for alleged copyright infringement include:

• Risks of enabling serious criminality. Website blocking will likely push users towards encrypted, anonymised technologies. These are difficult to outlaw without sacrificing the rights of individuals to privacy and security. They are also potentially very useful for people involved in serious criminality. Website blocking may make such technologies more common.
• Risks to innovation. Website blocking infrastructure will not work to eradicate copyright infringement nor increase access to, or the success of, legal markets. Thus rights holders will likely press for new technical restrictions and for the costs to be borne by network operators. As the infrastructure and cost of control grows, network operators will see benefits in using this infrastructure to capture value, for instance, by restricting access to legitimate content and competing services. This becomes especially attractive as ISPs distribute content. Other risks include undermining the status of network conduits and increasing costs and liability, again with costs to innovation.

Website blocking as policy response

We are very concerned that website blocking and content filtering is coming to be seen as an easy-fix. At the same time, these content suppression and censorship proposals currently involve insufficient procedures for establishing what is deemed worthy of blocking. Policy moves toward censorship will mean responsibility for what people are allowed to see and do being taken out of their own hands. With the technical, legal and social challenges associated with such decisions, this represents a significant danger to rights to freedom of expression and access to information.

With regard to blocking for alleged copyright infringement, there is a fundamental question regarding the ultimate policy goal. We believe with regard to the creative industries, this should be the growth of legal markets. The best way to achieve this is through market reforms advocated, for example, in the Hargreaves Review.