Courts have not been forthcoming with access to website blocking orders, citing administrative reasons for refusing to treat them as public documents.
A few weeks ago, ORG published the website 451unavailable.org to compile and analyse website blocking orders in the UK.
Our aim is to create transparency over what methods of blocking are being authorised, what blocking is being done and by whom.
Once a judge has decided that a website deserves to be blocked under Section 97A of the Copyright Act, each ISP is sent a court order describing the actions they must take to block the website. It specifies the kind of blocking to be undertaken. The court order contains other important information, including the name of the organisation responsible for mistakes and changes to the lists of clone sites to be blocked.
Publication of the orders should benefit everyone. Courts, ISPs and copyright holders stand to benefit by having this knowledge made public. Accountability, fewer errors and less confusion about what is happening should be the result.
However, ISPs are often reluctant to share the orders with us, despite the fact they are 'public documents'. Possibly they feel that copyright owners asking for the orders may find publication by an ISP provocative. This means we are obliged to ask the courts for the documents, in order that we can publish and analyse their contents.
Unfortunately, court officials so far have turned down ORG's requests for copies of the blocking orders. They have done this because, they say, 'judgment has not been entered' or 'service has not been acknowledged'.
We think court orders ought normally to be easily accessible to the public at all stages of litigation. At present the rules governing access to court documents only permit access to these orders as of right once the litigation has finished. The courts seem to be treating blocking injunctions as if they were like temporary injunctions made while proceedings are still going on. In fact the injunctions are the end of the section 97A process. Nothing more is intended to happen.
This week we therefore applied to have a procedural judge (a 'Master') in the High Court to look at our requests to gain access to the documents relating to the blocks of Fenopy, H33t and Kickass Torrents.
We hope to persuade the Master that a section 97A blocking injunction should be treated like any final judgment in court and be available to the public as of right. If we cannot do that, we will ask the Master's permission to have access to the orders.
As the orders proliferate, it is important that 451unavailable.org keeps a record of what is happening. In due course, we hope that ISPs will also link to these documents in their blocking notices, to make it clear what the legal authority for the block is.