affiliated to the International Association of Constitutional Law
On the 26th October, the subject of website blocking was in the news in two apparently very different ways. Firstly, as a result of the ‘Newzbin2’ court case in July ( EWHC 1981 (Ch)), BT was given 14 days to block access to the Newzbin website ( EWHC 2714 (Ch)) a membership-based website that provides access to potentially copyright-infringing material such as ‘pirated’ movies, music and games. Secondly, the Internet Watch Foundation (IWF) the organisation that provides lists of websites containing child sex abuse content so that Internet Service Providers (ISPs) can block them, celebrated its 15th anniversary. On the surface these may simply sound like two good things, scarcely related to each other, and nothing much to do with constitutional law – but are they? Or, more pertinently, should they be?
For some of us who work in what is loosely described as ‘cyberlaw’, neither event is particularly to be celebrated, and the links between them are clear and significant. In their different ways they highlight the need for more thought – and more action – in how we consider the internet from a legal perspective, and how we consider the rights of those increasing numbers of people who use the internet. What’s more, as the internet is now effectively intrinsic to how most of us function in our society, the rights that we have online are becoming critical supports to our rights in the ‘real’ world – so to look properly at our real rights, we need to consider our online rights more carefully.
The Internet Watch Foundation
The IWF is a registered charity, which works in partnership with ISPs, the police, the government and the public. As set out on their website, the “…IWF was established to fulfil an independent role in receiving, assessing and tracing public complaints about child sexual abuse content on the internet and to support the development of website rating systems.” A hotline was set up so that people could report websites to the IWF, which were then ‘assessed’ by the IWF: effectively “a ‘notice and takedown’ service to advise ISPs in partnership with the Police Services in the UK to effect its removal.”
The precise nature of the service provided by the IWF has been a subject of much debate by academics and others. From a pragmatic perspective, however, they do just what they say: receive tips, assess websites, and if they believe the websites infringe the law in respect of child sexual abuse content, they ‘blacklist’ the sites. This blacklist is provided to UK ISPs – and almost all the UK ISPs use it. BT, one of the biggest of the ISPs, implements the blacklist using a system called ‘cleanfeed’. From a user’s perspective, using normal browsing methods they cannot get access to blacklisted sites – thus preventing, as intended, users from getting access to child sexual abuse content.
The original Newzbin website appeared to be intended to facilitate the sharing of copyright-infringing material – and in March 2010 Newzbin Ltd was found guilty of deliberately indexing copyrighted content (Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd  EWHC 608 (Ch)). Newzbin initially shut down as a result, but relaunched as ‘Newzbin2’ in June 2010, this time hosted in the Seychelles. Further legal action followed, resulting, eventually, in the order in July 2011 for BT (in its ISP role) to block access to the Newzbin site. The method by which BT should implement this block was suggested to be the cleanfeed system through which, as noted above, it currently implements website blocking for the blacklist provided by the IWF.
So what could be wrong?
The IWF, though it performs what looks like a simple public service, has been criticised for a lack of accountability, transparency and consistency. If a website is blocked, the provider of that website is not automatically informed and their opportunities to challenge that blocking are very limited. The best know example of this happened in 2008 when the Wikipedia page for the rock band the Scorpions’ 1976 album ‘Virgin Killer’ was reported to the IWF because of the image of an apparently pre-pubescent and near naked girl on the album cover. The IWF added it to the blacklist. Wikipedia complained, and found the response limited to say the least. As they put it:
“When we first protested the block, their response was, ‘We’ve now conducted an appeals process on your behalf and you’ve lost the appeal.’ When I asked who exactly represented the Wikimedia Foundation’s side in that appeals process, they were silent.”
After significant pressure from Wikipedia and others, the IWF reversed their stance and allowed access to the page again – but at the date of writing this blog, there is still no transparent system of appeals, and no apparent sign of one being considered.
When the Newzbin case is added to the equation, the issues raised by this lack of accountability and transparency become more significant. To move from blocking assessed child sexual abuse content to blocking for copyright infringements is quite significant – and the potential chilling effect of the judgment should not be discounted. The BPI took little time in trying to start this ball rolling by suggesting to BT on November 4th that they should block The Pirate Bay on the basis of Newzbin 2. When the contentious Digital Economy Act, (currently under Judicial Review) and the even more controversial Anti-Counterfeiting Trade Agreement (ACTA) (which has worldwide scope and is currently finding its way through the European Parliament) are added to the equation it’s not just legally proven copyright infringements that could trigger blocking, but suspected copyright infringements.
What else might people want to block? Site associated with ‘terrorism’? Certainly. Sites that might incite violence or unrest? The response to the summer riots makes that seem entirely possible – but we should remember the uncomfortable parallels between the methods of control attempted by the now-ousted governments of Tunisia and Egypt – and indeed the current governments of the likes of Syria and China – to the policies suggested by David Cameron and others in the immediate aftermath of the summer riots.
To block or not to block is not the question
There are not many who would against the need for rights-holders to be able to defend their rights any more than they are arguing in favour of a right to publish or consume child sexual abuse content. To block or not to block is not the question – it’s more a question of when and how to block. The process is crucial. We need transparency and accountability. We need due process. We need a proper balancing of rights. In order that we are able to find a proper balance, and a ‘proportionate’ way to protect the rights-holders from having their rights infringed, and indeed to protect children (and adults) from extremes such as child sexual abuse content, more coherent, intelligent and clear thought needs to be put in.
The starting point has to be to get a greater understanding of the nature and role of the internet in today’s society. The internet has changed significantly in the fifteen years since the foundation of the IWF – and so, importantly, has the way that people use it. We’re no longer either ‘users’ or ‘providers’ of information on the internet: we’re contributors, collaborators, discriminators – and we’re conduits for content ourselves. How many twitter users have tweeted interesting links or content to others? We don’t use the internet just as a system of communication, a source of information or as a method of self-publicising – pretty much every activity we do in the real world can be integrated with the online world, from shopping to interaction with government, to work and our social lives. The trend towards that integration is unlikely to slow any time soon – if anything, it appears to be accelerating with the increased prevalence of smartphones and the ubiquity of social networks.
Rights on the internet
This trend has been effectively acknowledged by the increasing acceptance of a ‘right to access’ the internet – the UN, for example, pushed the idea in the report in August 2011 by UN Special Rapporteur Frank La Rue. If we have the right to access the net, then we need to think about what rights we have once we’re on the net. There are many related rights that need to be considered, from privacy and freedom of expression to access to information – and such rights as freedom of association and assembly and even freedom of religion have their online aspects too.
These rights can be complex and apparently in conflict – but isn’t it time that we thought about them in a more integrated and coherent way? We ‘need’ the internet in more ways than before, ways that make it a much bigger thing to cut off internet access or to censor or control what we can see. In the opinion of many – myself included – rights to access, to free expression and to privacy need to be given more weight than they currently are given, particular in relation to intellectual property rights, and even, contentious as it may seem, to the need to combat the producers and consumers of child sexual abuse content.
Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at The Symbiotic Web Blog (link to http://symbioticweb.blogspot.com/) and tweets as @paulbernalUK.