The UK’s Minister for Communication, Culture and the Creative Industries, Ed Vaizey MP, has been hosting roundtable discussions for some months about how to develop policy for the creative industries. These primarily involve copyright holders, ISPs and Internet companies such as Google. The item that has risen to the top of the roundtables’ agenda is a possible website blocking scheme for sites that allegedly facilitate copyright infringement.
At issue are the rules that will govern what people are allowed to do and see online. But the proposals leaked yesterday are a long way from providing the kind of legal process necessary to guarantee against a misdirected and dangerous blocking scheme that will have a material effect on rights to freedom of expression and access to information.
The documents describe a “voluntary” blocking process involving “expedited” court procedures with slimline legal oversight, no definition of or evidence for the exact problem being addressed, and no consideration of the technical considerations and consequences of trying to block websites.
Exactly who would make the decisions in the proposed “expert body” and council about what requires blocking is unclear, as is the role of the court in rubber-stamping those decisions.
This concerns more than just the rights of “sites that facilitate infringement” or those running them. Copyright holders should have the ability to enforce their rights. But that has to happen in a proportionate way, aimed at a clearly identified problem, involve proper due process and be considered in an open and accountable way.
This is the only way to ensure that some people do not have too much power to block access, that it is only the right sites that are blocked, and that there is a robust, democratic and clear framework for deciding what qualifies for the measures.
Where there is a danger of too much power being given to some interests over what is accessible, and where there are dangers that the wrong content is blocked, there is a tangible affect on what everybody can see online. These proposals do not provide the necessary safeguards and due process, failing to add up to transparent, necessary and proportionate measures.
The Internet has become one of the primary mechanisms through which people express themselves and organise. The rules that govern the flow of information need to be water tight, fully respecting due process and in doing so respecting everybody’s rights to freedom of expression.
Writers like Evgeny Morozov show us that whilst the Internet offers great potential to extend and entrench our freedoms, at the very same time it can take those freedoms away. That can happen when governments or organisations are given too much power, for instance to block certain kinds of information. In a democratic society, you have to hope that it is the legal framework and an adherence to it that guarantees which of these scenarios we live with.
This is why the UN Special Rapporteur Frank La Rue said he was “alarmed” at measures such as website blocking in his recent report on freedom of expression and the Internet.
Clumsy, quasi-judicial and unaccountable website blocking is dangerous for exactly that reason. One hardly needs to look far to see examples of why a robust, clear legal framework for any website blocking proposals is crucial to ensure that rights to freedom of expression and access to information are not abused.
Internationally, attempts to block access to the Internet are a staple part of attempts to exert repression over their citizens. In the UK Internet blocking seems to have gone “viral” across government, with proposals emerging not only in these copyright discussions but also in the new “Prevent” strategy, where again proper legal processes are absent and definitions about exactly what content law enforcement will have the power to block are extremely broad and vague.
The UK should be taking a lead in developing responsible Internet policies that set an example to the rest of the world. That can only happen through clear, accountable and proportionate processes through which decisions are made about what all of us are allowed to see and do on the Internet.
There is every chance to do so by grounding proposals in simple principles like a duty to follow evidence and a respect for due process and fundamental rights.
So far these roundtables have largely involved only rightsholders and Internet companies. It was only the most recent meeting that involved a consumer rights representative, Consumer Focus (their response to the blocking proposals they discussed is here). We are unsurprised to see proposals that do not properly take these concerns on board.
This is why Open Rights Group joined Index on Censorship, Article 19 and Global Partners in asking for proposals like as the ones leaked yesterday to be made public.
We are now asking people to write to their MPs to ask them to sign EDM 1913, which calls for the government to take on board what the UN have said and reconsider the Digital Economy Act and its many proposed website blocking schemes.
We hope they do. It is not the right to infringe copyright that is at stake, but the principles of freedom of expression that affect everyone.
Peter Bradwell is a campaigner at Open Rights Group and the author of Private Lives, a new pamphlet about attitudes to privacy