Thanks to ORG, block notices are now telling you more about the reasons why websites are blocked, explaining that court order can be challenged.
you have the right to apply to the High Court to vary or discharge the Orders below if you are affected by the blocks which have been imposed. Any application must be made to the High Court directly and must (i) clearly indicate your identity and status as an applicant; (ii) be supported by evidence setting out and justifying the grounds of the application, and (iii) be notified to all parties 10 days in advance.
This is a great step forward, and has taken place because of ORG’s intervention in the Cartier trademark blocking case. Judge Arnold took our points about transparency and safeguards against abuse very seriously, and asked for some basic steps to be made to make it clear to website users that they can challenge court orders if they believe that the blocks are incorrect.
However, it isn’t quite enough information to be truly useful. Websites of course change in their nature, and mistakes can be made. It’s important that blocks can be changed, and users can make the holders of court orders aware of problems.
Let’s take a concrete example today. Filestube has changed its service so it is no longer linking to infringing content. However, it is still being blocked by UK ISPs. Who does a user complain to?
A similar incident occurred with Newzbin.com, which was blocked, but is no longer, as it is not serving the original infringing website content. (The court order lasts indefinitely, however, so it could be reimposed at any time.)
In theory you could try to go to court if you wanted a block lifted. However, the information pages are missing most of the important information, such as court references, that would allow the user to obtain the order, any judgment, and then work out arguments to challenge the order.
The simplest course of action would be to enable Internet users to contact the parties who obtained the order, and alert them to the change, so they could make their own decision to tell the ISPs to lift the block.
This information needs to be fully stated on the information pages. Currently, the ISPs say “members of the BPI” obtained the order. That is not enough information to make a complaint about a mistake, because it is unclear who exactly holds the court order.
When the legal music website PromoBay was launched by Pirate Bay collaborators, it was blocked, because the domain had been pointing to the Pirate Bay. Users were unsure who to complain to, and asked the ISPs to lift the block. The ISPs pointed out that the BPI on behalf of music and film companies were responsible for maintaining the list of domains and IP addresses hosting the Pirate Bay. According to the orders, it is the claimant who must tell the ISP which domains and IP addresses must be blocked.
It would be very useful for the notices to link to the court orders and judgments. Getting hold of an order is the first step to making a legal challenge. Many of the judgments are available on Bailii, both as digital scans and text; the orders are available on 451unavailable.org. This project, run by ORG, has catalogued most of the court orders, precisely with the aim of making this information public.
There is therefore no reason for the blocking notices not to link to the orders or judgments, or making their own copies available.
These are quite simple changes which we believe the ISPs can easily make themselves. In summary, the pages need to provide:
- Court references, so copies of orders can be easily obtained
- The name of parties who hold the order and can vary it
- Links to the judgments and orders, especially as these are already in the public domain
We are writing to ISPs today to ask them to make these modest but important changes.