Freedom of Information request: Site blocking working group 15 June
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.
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;
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:
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.
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.
‘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.
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.
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)
meeting to be scheduled for late July/August