Web blocking rears its ugly head

Milena Popova assesses the impact from the Newzbin ruling

Image: CC-AT Flickr: say_cheddar

Reading the headlines Wednesday morning, you could be forgiven for thinking that one of the long hard battles the Open Rights Group has been fighting for the last couple of years - the one on the web blocking provisions in Sections 17 and 18 of the of the Digital Economy Act 2010 - had been won. "Government scraps plans to block illegal filesharing websites”, proclaimed the Guardian, with similar headlines on BBC News and other outlets. The reports referred to comments made by Business Secretary Vince Cable in the wider context of his response to the Hargreaves Review.

Once you look at the specific comments made by Mr Cable and the timing of this announcement, however, things seem a little less rosy. The sudden change of heart comes less than a week after the first web blocking injunction on copyright infringement grounds was granted in the UK by a High Court judge. The Newzbin2 case is a landmark ruling, asking BT to use Cleanfeed software (normally used to block child pornography websites) to block access to Newzbin2 a popular website which enables filesharing based on the Usenet platform.

What is really important in the Newzbin case is that the injunction is granted not based on the Digital Economy Act 2010 (the relevant web blocking sections of which will now most likely never be implemented), but based on Section 97A of the Copyright, Designs and Patents Act 1988. Section 97A, in turn, is the UK implementation of a European Union Directive on E-Commerce. The reach of Section 97A is substantial: it gives the High Court the power

 

to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

The terms of reference here are extremely broad with few clarifications or restrictions. Pretty much the only qualification are the words “actual knowledge”. Reading the full ruling in the Newzbin2 case, it quickly becomes apparent that Mr Justice Arnold, by ruling in favour of the Motion Picture Association, has taken the broadest possible interpretation of Section 97A.

One wonders, at this point, why the MPA is bothering with Newzbin in particular - they are a private members-only service with very limited reach, using a fairly obscure technology. The material damage, if any, they are doing to the film industry is exremely limited, particularly compared to other filesharing services. There are some other good questions around the way the MPA have gone about this, eloquently raised by Alison Wheeler; notably, why the target here is BT rather than, say, Newzbin’s overseas ISP wherever the servers are hosted.

Here is one theory: Newzbin is an easy target for a test case. There was already a pre-existing ruling stating that Newzbin1 - a practically identical service - was guilty of copyright infringement. Because the new incarnation of the site is hosted outside the UK, no legal measures can be taken against the site directly. From there it is a small step to see how much you can get away with in terms of web blocking under existing legislation (as opposed to the not-yet-implemented Sections 17 and 18 of the Digital Economy Act which at that point were in the process of being reviewed by Ofcom). What the Newzbin2 case therefore has done is open the gates to web blocking.

Back to the Business Secretary’s comments from Wednesday, we can see that he references Ofcom’s guidance on the implementation of web blocking under the Digital Economy Act (executive summary: unworkable). Speaking to the BBC, however, Mr Cable also suggested that “test cases” had played a part in the government’s decision to drop the implementation of Sections 17 and 18 of the Digital Economy Act. That comment, combined with the timing of the announcement, strongly hints at the Newzbin2 case.

Comparing Sections 17 and 18 of the Digital Economy Act and Section 97A of the Copyright, Designs and Patents Act, what strikes me is how restrictive the former seem compared to the latter. They speak of proportionate responses and infringement activities that have a “serious adverse effect on businesses or consumers” and explicitly state that in determining whether to grant an injunction the court must consider the importance of freedom of expression. No such formal safeguards are to be found in Section 97A. Ironically, BT’s counsel used Section 17 of the Digital Economy Act in their defense in the Newzbin2 case.

The Digital Economy Act continues to be a poor piece of legislation, and to an extent the announcement that Sections 17 and 18 will not be implemented comes as a relief. However, given the context of the Newzbin ruling and the opening of the door to web blocking based on existing legislation which is much broader, I wonder if a year from now we will look back and wish we had Sections 17 and 18 instead.

 

Milena is an economics & politics graduate, an IT manager, and a campaigner for digital rights, electoral reform and women's rights. She tweets as @elmyra