This paper was released to ORG as a result of an FOI request to DCMS, along with a copy of the previously released website blocking proposal.
Site blocking working group: Wednesday 15 June
The rightsholder proposal paper – circulated to the group in advance of the meeting – was outlined. Caveats to the proposal were flagged:
1. In light of the Ofcom report on DEA s.17 and 18, the paper doesn’t comment on which blocking technique(s) should be used;
2. Costs are a ‘second order issue’, hence not tackled in the paper;
3. Awaiting clarity from DEA judicial review appeal application and MPA vs BT [97A] case (hearing scheduled for 28 June).
Key points from discussion of the proposal:
- Intended to target a small number of structurally infringing sites, rather than ‘stray’ infringement on e.g. YouTube.
- Does not replace current legislation: the judicial process is important, and a voluntary code will simply allow for streamlined submissions to the Court.
- Onus is on rightsholders to identify infringement.
- Whether an injunction against a website should be temporary or permanent depends on the type of content. It was noted that site owners could appeal against any injunction at any time either to oppose introduction of injunction or to seek to have it lifted.
- There may be a role for an Expert Body to review a case for injunction in order to satisfy the courts that a quick application hearing would be sufficient – there was some discussion about whether this would require a change tothe Civil Procedure Rules. The rightsholder view was that this could be done if the Court desired it, but isn’t essential.
- The ‘voluntary’ aspect of the proposal comes from ISPs agreeing to agree technical approaches and standards of evidenced. It would generally be expected that ISPs wouldn’t then challenge the injunction application but ISPs would not forfeit their right to argue against the injunction, if desired.
- ISPs should not be liable if users manage to evade the website block. Which techniques might be favoured to implement the block should be addressed in future iterations of the proposal and could be remitted to the expert group.
- Google queried what benefit the proposal offered over what currently exists. If rightsholders believe the current judicial process is too lengthy, we should start by asking why: for example, is it because of the unnecessary Court admin or because of the necessary burden of evidence gathering? The most important thing is that we should have a proper court process, with the court considering the merit of the application.
- There was some discussion about the use of the Applications Court in this context. It was noted that there have been no previous attempts to get a blocking injunction from there, rather than the High Court. The Applications Court appetite for involvement in this scheme is not yet known.
- BT expressed scepticism about the feasibility of the proposal – particularly before the issue of costs is addressed – and queried what benefit there was to ISPs from participating in a voluntary scheme, particularly before any jurisprudence has been developed in respect of the use of s97a of the CPDA for seeking injunctions of this kind.
- Sky was positive about the opportunity to co-design a process, and in favour of beginning to discuss the issues, whilst awaiting the outcome of the 97A court case.
- Virgin Media expressed in-principle support for the discussions, but was mindful of the important questions over costs and technicalities.
- TalkTalk could not express support for a site blocking proposal until further details were addressed, such as how the expert body will marry up with the judicial process.
1. DCMS to identify process for considering issues around Applications Court processes.
2. Rightsholders to send a copy of the proposal paper to Everything Everywhere and O2 (EV’s office to provide contact details)
3. Next meeting to be scheduled for late July/August