Open Rights Group believes that website blocking and the filtering of content should be avoided. Blocking and filtering is bad policy. Serious infringers will continue to infringe and will continue to access the supposedly blocked sites. Blocking can only prevent ‘accidental’ access: a suitable end in regard to personal avoidance, but not if the objective is targeting knowing infringers. As such, it is bad public policy, and will lead to calls for more damaging and intrusive measures.
There are significant risks of over-blocking, of insufficient redress, of damage to innovation and of driving users to more sophisticated forms of encryption and other avoidance measures. Due in particular to the risks of over-blocking and network damage, blocking would harm people's rights to freedom of expression and access to information.
It will be expensive. We also do not believe that blocking will work to satisfy the key policy objective of growing legitimate digital markets. In short technologies do not solve social problems. Bad laws on the other hand could in this case bring copyright and government into disrepute, as a policy lying somewhere between ‘King Canute’ and Prohibition. Like prohibition, the only sensible answer to bootleg goods is a thriving legal market.
We recognise that there are many ongoing discussions regarding the filtering of content online. We also understand that blocking injunctions can be sought, which require balances as outlined below to be pursued. In this instance, a policy of ‘wait and see’ would be advisable, to allow the benefits and problems with current court processes and improvements to legal supply to be understood.
Should further blocking be pursued, there are five simple 'tests' which any blocking measures must pass.
This statement is not meant to abrogate our fundamental rejection, explained briefly above, of the use of blocking as a way of managing undesirable content.
Proposals to block content for copyright infringement, most recently in the form of rights-holders' proposed 'voluntary' scheme, fall far short of satisfying these tests. We believe that satisfying these tests is an insurmountable challenge for website blocking for copyright infringement.
With regard to the current proposals, we believe they are unworkable and harmful, and certainly fail to meet the criteria laid out above. The problem has not been clearly enough defined. The evidence has not been set out to demonstrate why blocking would address the problem at hand. There is no demonstration of why this would be a proportionate response to that problem.
There is no analysis of the effects on freedom of expression. This is especially problematic where there is a vaguely defined problem and no technical analysis of the likely consequences. There are no proposals to ensure transparency of any future process. Policy development of these ideas has taken place in small stakeholder roundtables; a matter of such public interest must be subject to a proper public consultation.
What looks like a simple industry-led proposal would in fact be a heavy regulatory burden, being expensive, complicated, subject to challenge, lead to harms for people's rights to freedom of expression and involve bare-bones and insufficient legal process.
In addition to the risks to freedom of expression, other risks from website blocking for alleged copyright infringement include:
Website blocking as policy response
We are very concerned that website blocking and content filtering is coming to be seen as an easy-fix. At the same time, these content suppression and censorship proposals currently involve insufficient procedures for establishing what is deemed worthy of blocking. Policy moves toward censorship will mean responsibility for what people are allowed to see and do being taken out of their own hands. With the technical, legal and social challenges associated with such decisions, this represents a significant danger to rights to freedom of expression and access to information.
With regard to blocking for alleged copyright infringement, there is a fundamental question regarding the ultimate policy goal. We believe with regard to the creative industries, this should be the growth of legal markets. The best way to achieve this is through market reforms advocated, for example, in the Hargreaves Review.