Research Claims Court Ordered ISP Website Blocking is Open to Abuse

A new study from researchers working out of the Western Sydney University and King’s College London has claimed that court ordered website blocks by UK broadband ISPs, such as those used against Internet piracy websites, could be open to abuse.

Copyright Holders have for several years been able to harness Section 97A of the Copyright, Designs and Patents Act 1988 to secure mandatory “blocking orders” against copyright infringing websites, which must be enforced by the major ISPs (e.g. BT, Sky Broadband, Virgin Media, EE and TalkTalk).

However the new paper again reminds us that such blocking is largely ineffectual unless every country in the world does it and even then it can be easily circumvented, such as through the use of Virtual Private Networks (VPN), DNS changes, HTTPS or Proxy Servers etc.

On top of that the paper warns that, in the EU context at least, “not only does the implementation of the blocking injunction fall short of due process requirements, but also the legal basis for the remedy in the context of enforcing trade mark rights is questionable.” Sadly we couldn’t find a working download link on the summary, but Torrentfreak has an extract.

One particular concern is raised with regards to how the operators of such sites are effectively excluded from proceedings, although it’s equally fair to say that anybody running a haven for copyright infringement probably won’t turn up to court.

Report Extract:

“Notably, neither of [the] domestic provisions under which the High Court typically exercises jurisdiction in granting blocking injunctions provide that the operators of the online locations sought to be blocked be made party to the application before the court.

Thus, a common feature in the series of cases leading to blocking injunctions in the copyright context … is that only the ISPs who were called upon to block the target online locations were before court and not the operators of the online locations in issue.

[M]ost orders to-date have been granted after consideration of the applications on paper alone. Essentially, what this means is that the court is only possessed of the material submitted by the rights-holders, which go uncontested by the ISPs, leaving the interests of the operators of the target online locations completely unrepresented.

What must be emphasised is that, in future, there may be instances where the operator of an online location has a plausible defence to a claim of IP infringement. In the circumstances where the court is only privy to the pleadings and documentary evidence submitted on behalf of a right-holder, the court’s discretion may become the subject of abuse.”

Apparently the manner in which the relevant EU directives are implemented means that even site operators who could be identified and notified, which is very rare, don’t have to be informed of the proceedings under the law. The UK does apply a safeguard that allows such operators to join the case, but the lack of a notice requirement under the law may “render this safeguard, at best, useless.”

Mind you nobody seems to dispute that the sites being targeted aren’t anything other than platforms for facilitating mass copyright infringement and so far there have been no clear examples of abuse by Rights Holders. Meanwhile ISPs and Rights Holders continue to count the ever rising costs of imposing such blocks in the first place (here).