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European Advocate General says web-blocking is just fine

By | Published on Thursday 9 February 2017

European law is likely fine with web-blocking. So gather one and all for a big fat web-block party. Though maybe we should wait until the European Court Of Justice itself has actually ruled on this, so far we’re basing this conclusion on the opinion of the EU’s Advocate General Maciej Szpunar. But he looks like he knows what he’s doing.

So yes, web-blocking, as much previously reported, has become one of the music and movie industries’ preferred anti-piracy tactics in those countries where copyright law allows for such a thing. Rather than a rights owner going to the bother of suing a piracy platform – which is likely based outside their local jurisdiction – they get an injunction forcing internet service providers in their home country to block their users from accessing said site.

Web-blocking has been employed in numerous countries now, and particularly prolifically here in the UK. Whenever web-blocks are first proposed in any one place, the local net firms commonly bluster and splutter about web-blocking being ineffective, about how they can’t be the policemen of the internet, and about how web-blocking might get out of control and curtail free speech. Though then, once the web-block injunctions start to roll in, they usually just start quietly blocking any sites on the list and get on with their lives.

However, in the Netherlands, ISPs Ziggo and XS4ALL continued to fight the good fight, and successfully had a court order to block The Pirate Bay overturned. The Dutch high court decided in 2014 that web-blocking was “ineffectual” and might “constitute an infringement of [people’s] freedom to act at their discretion”.

The country’s anti-piracy agency BREIN appealed that decision to the Dutch Supreme Court, which then batted the matter up to the European Courts Of Justice, just to see whether European law had any issues with web-blocking, and the possible “infringement of people’s freedom to act at their discretion” it might ensue.

That’s how the EU’s Advocate General Maciej Szpunar came to be pondering over the ins and outs of the web blockades. He has now provided his opinion to the European court, and while his conclusion isn’t binding on the judges there, it is very influential.

As discussed in this week’s CMU Trends article on so called contributory infringement, whenever file-sharing operations like The Pirate Bay face legal challenges from rights owners, they will always say two things: first that they don’t actually host any copyright infringing content themselves, they merely connect other people who then infringe copyright; and second that their services have legitimate as well as illegitimate uses, in that a digital rights owner might choose to distribute their own content by employing P2P sharing.

Many copyright systems allow for facilitators of infringement to be held liable for that infringing activity though, even if they themselves don’t actually copy or communicate the copyright work without licence.

Meanwhile, in his review of the Dutch Pirate Bay web-block case, Szpunar actually considers whether The Pirate Bay – by indexing unlicensed content and providing a search engine to help others access it – is in itself communicating said work to the public, an act restricted by the copyright.

He concludes that, under his interpretation of the relevant European directive, it is. Though only if “that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible”.

What about the fact TPB can be used for legitimate file-sharing, and the common argument that blocking the entire site would prevent such legitimate activity?

On that point Szpunar talks quite a bit about ‘proportionality’. Which is to say, he reckons national courts can order for access to sites to be blocked, even if that means cutting off some legitimate activity, “provided that measure is proportionate to the significance and seriousness of the copyright infringements committed”.

Given that rights owners in the Dutch case reckon over 90% of activity on The Pirate Bay is the sharing of unlicensed material – a figure not disputed by the net firms – a web-block against the infamous file-sharing site would seem to meet those criteria.

This all means that, if the European Court Of Justice now accepts Szpunar’s conclusion, the Supreme Court back in the Netherlands could definitely get on with blocking the Bay without infringing anyone’s rights under European law. Which is good news for the music and movie industries in all those other European countries – including the UK – that have already secured a flurry of blockades against various piracy sites.