Government re-introduces controversial site-blocking powers

Out-Law News | 31 Mar 2010 | 3:30 pm | 2 min. read

Courts will be able to force ISPs to block all UK access to websites that are suspected of being involved, or even likely to be involved, in copyright infringing behaviour under just-published Government plans.

The Government has amended the controversial Digital Economy Bill to adopt many of the measures previously proposed by Conservative and Liberal peers but later withdrawn. One expert has said that the plans give courts the power to block "any site on the internet'".

A new Clause 18 to the Bill has been proposed by the Business Secretary Peter Mandelson allowing ministers in the future to introduce the power for courts to order ISPs to block access to websites or internet locations involved in alleged copyright infringement.

But internet law academic Lilian Edwards has said that the measures are structured in a way that would lead to ISPs blocking sites without a court order and only on the basis of allegations, not on proof of wrongdoing.

"My principle worry [with the previous proposals] was that the safeguards on court orders … 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," said Lilian Edwards, Professor of Internet Law at Sheffield University, in a blog post. "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'," said Edwards. "But if you look at the actual regulations, all it says … is that there may be regulations to this effect. Or there may not… It will be left to courts to develop their own rules – and who knows how that might go?".

Edwards also said that the terms used in this version of the clause gave it a wider application than in the version proposed by the Conservative and Liberal party peers because it referred to sites or internet locations at which material is or "is likely to" be being made available.

"In essence this is a power in principle to block any site on the Internet, any search engine and any P2P client site, however legal," she said.

There was widespread opposition to the initial plan to force ISPs to block websites that might be used in copyright-infringing activity and the peers behind it dropped the proposal. There are fears, though, that this proposal may not receive the same kind of scrutiny in the House of Commons that the previous proposal did in the House of Lords.

The announcement of the general election is expected next Tuesday, at which point Parliament will be suspended. Pending legislation will then be subject to an inter-party horse-trading process called 'the wash up' to determine which Bills can pass and with what changes.

Giving power to the courts to order ISPs to block access to sites has been opposed by civil liberties but also by web publishers, ISPs and other internet businesses.

Bosses from BT, Virgin Media, Orange, Facebook, eBay, Yahoo! and other companies voiced their opposition when the plan was put forward in the House of Lords. They said it had "obvious shortcomings" and "would both widely disrupt the internet in the UK and elsewhere and threaten freedom of speech and the open internet, without reducing copyright infringement as intended", according to a letter they wrote to the Financial Times.

In his letter to his opposition counterpart Lord Mandelson said that his proposal was an improvement on that heard in the Lords because it involved a consultation period before the measure was introduced; that there would have to be debate about it in Parliament before the regulations were introduced; and that the courts would have to take into account the effect any blocking would have on freedom of speech.

Mandelson said that the amendment would be tabled next Tuesday after the Bill's second reading in the House of Commons.

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