ERROR 451: Site unavailable for legal reasons
Can internet service providers be ordered to block a specific website?
Blocking websites has recently become a popular method for combating legal violations, particularly in the context of copyright protection. It’s enough to glance at the rulings from the last few months. In late May a court in Tel Aviv ordered Israeli ISPs to block access to a service where films and TV shows could be viewed without the consent of the copyright holders using the BitTorrent protocol. This followed in the trail of the English High Court, which less than a month earlier issued a very similar injunction. And shortly thereafter the same court order British ISPs to block access to portals offering e-books without authorisation.
But these methods have also been criticised for the lack of transparency in the process in which they are applied, the absence of a clear indication of the reasons for the block, and the negative influence on freedom of speech—or outright censorship. A British NGO, the Open Rights Group, is even calling for introduction of a special “Error 451” in the HTTP protocol which would be displayed to internet users seeking to visit a blocked site, together with a reference to the relevant judicial ruling. The number is no accident, but is taken from the title of Ray Bradbury’s 1953 novel Fahrenheit 451—the temperature at which paper begins to burn. In the world of the novel, possession and reading of books are prohibited.
Many techniques, little effectiveness?
Apart from these objections, the effectiveness of blocking websites is often questioned. According to “Site Blocking” to reduce online copyright infringement: A review of sections 17 and 18 of the Digital Economy Act, a report prepared in 2010 by Ofcom, the UK’s telecoms regulator, the notion of “site blocking” actually covers an array of techniques. For example, it may involve blocking the URL (Uniform Resource Locator) entered in the browser (e.g. http://www.website.com/), also including links to specific content (e.g. http://www.website.com/subsite/file.pdf)—a type of block that is very precise but also costly and difficult to implement. Another method is to block the domain name (e.g. website.com) or the associated Internet Protocol (IP) address (e.g. 123.45.678.90), but this prevents access to all content at the given domain name or IP address, legal or illegal (known as “overblocking”).
As Ofcom mentions in the report, applying these solutions is not only a cost for the ISP, but sometimes makes it necessary to shut down the systems ensuring uninterrupted access to the internet. This is usually done at scheduled intervals, which can significantly delay the blocking. And these methods are not entirely effective, because they can be circumvented in several ways by the owner of the site or the ISP user. But at least some users will give up trying to view a site when they find it is blocked.
Blocking content under EU law
For the legal aspects of blocking websites, we should turn first to Art. 8(3) of the Copyright Directive (2001/29/EC) and Art. 11 of the IPR Enforcement Directive (2004/48/EC). Under these provisions, holders of exclusive rights may demand that the court issue an injunction against intermediaries who are not themselves infringing intellectual property rights but whose services are being used for this purpose by a third party.
In UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH (Case C-314/12, judgment of 27 March 2014), the Court of Justice of the European Union stated that an ISP’s customers are undoubtedly using its services (i.e. internet access) when viewing a site where content has unlawfully been made available. From this the court reasoned that the owner of such a site is also using the services of the ISP, even though it has no ties to the ISP. Thus the court concluded that an ISP may be ordered to block a site, even if this measure is not entirely effective. It is sufficient for the ISP to take measures making it difficult to access the site, or seriously discouraging users from attempting to gain access to the content. The Court of Justice further held that the injunction should not specify the measures that the ISP must take, but selection of reasonable measures should be left to the ISP. This approach was criticised, however, because it creates great uncertainty for ISPs. If the measures they apply are too weak, they could be held to be in violation of the injunction (exposing them for example to monetary sanctions), or if too strong (blocking access to legal content) they could face civil liability to their customers.
These directives also expressly provide that they are without prejudice to the provisions of the E-Commerce Directive (2000/31/EC), in particular Art. 12–14 excluding the liability of ISPs for merely transmitting, caching or hosting content. But these provisions expressly permit courts or administrative authorities to require a service provider to terminate or prevent an infringement. Such injunctions must be consistent with the legal system of the member state, however, which means that Art. 12–14 of the E-Commerce Directive (and the national legislation implementing it, e.g. Art. 12–14 of the Electronic Services Act of 18 July 2002) do not constitute in themselves grounds for introducing such measures.
National measures against ISPs
A condition for applying the measures provided for in Art. 8(3) of the Copyright Directive and Art. 11 of the IPR Enforcement Directive is their implementation into national law. In L’Oréal SA v eBay International AG (Case C-324/09, judgment of 12 July 2011), which we wrote about in “eBay on the blacklist”, the Court of Justice expressly held that the member states must enable the national courts to issue orders not only to cease existing infringements but also to prevent further infringements. Poland’s Act on Copyright and Related Rights of 4 February 1994 and Industrial Property Law of 30 June 2000 do not refer directly to issuance of injunctions against intermediaries who are not infringing exclusive rights (apart from “informational claims”).
One of the possible grounds that could be considered for blocking sites is Art. 439 of the Civil Code, under which anyone who is directly exposed to the threat of a loss by the behaviour of another person may demand that the other person take the measures necessary to avert the threat. Here the behaviour of the other person would be the provision of services by the ISP, and the necessary remedy would be blocking the content. But it seems that the ISP’s behaviour itself is not causing the direct threat of a loss, interpreted to mean a high probability of occurrence. Internet access services are after all neutral in character, and may be used in various ways, which is also true for example of postal services, which could likewise be used for distribution of illegal copies of works. And most commentators agree that the preventive claims provided for in Civil Code Art. 439 may be asserted only against a party that could be liable in the future for the loss, because only such a person can be expected to take action to prevent the loss from occurring. Otherwise preventive relief could be sought from just about anyone. Thus it should be assumed that Civil Code Art. 439 does not provide grounds for imposing a duty on an ISP to block online content, unless the ISP could be held liable for the infringement itself.
Much greater possibilities are offered by Art. 180(1) of the Telecommunications Law of 16 July 2004, but these apply only in the area of defence and state security. Institutions such as the Police, the Internal Security Agency and the Central Anti-Corruption Bureau are entitled to demand that a telecommunications enterprise, e.g. an ISP, promptly block telecommunications connections or information exchange, or even permit such services to block these items themselves. The measures that can be taken include blocking websites. The demand for a block may only involve connections that could threaten defence, sate security, or public safety and order. This determination does not rest with the ISP, however. It must first promptly comply with the order, and only after that may dispute the order through the administrative courts.
In summary, under Polish law, at least in the context of civil proceedings, it is difficult to find grounds for requiring an ISP acting solely as an intermediary (not committing infringement of exclusive rights) to block online content. But this does not mean that the holders of intellectual property rights are helpless. They can still protect their interests by appealing directly to the operators of the sites, primarily through the “notice and takedown” procedure for removing unlawful content.
Rafał Kuchta, New Technologies Practice, Wardyński & Partners
The article is a part of the New Technologies Newsletter, August 2015
