Posted in Art. 11 EnforD, Art. 8(3) InfoSoc, human rights, right to a fair trail, UK, website blocking

What’s Wrong With UK Website Blocking Injunctions?

British courts issued already three website blocking injunctions against five copyright-infringing websites (Newzbin II. + 1 [Newzbin], Dramatico Entertainment + 1 [Thepiratebay], EMI Records [KAT, H33T, Fenopy]). In this blog post I don’t want to question the effectiveness of the remedy for copyright cases as I did before (see also J Arnold’s opinion in EMI Records, para 106). Here, I want to focus on the fundamental rights perspective of the website blocking.

The website blocking cases are usually proceedings against the Internet access providers, who as defendants are asked to employ certain technical means to make the access to disputed websites more difficult for its subscribers (an uncircumventable website block is impossible). These injunctions are a way of exercising, what I call, actio negatoria in rem, i.e. a cease and desist claim (injunction) in rem, that is entirely independent of the defendants position within the tort law system. The defendant here does not have to be a wrongdoer (direct or secondary infringer) in a tort law sense, in order to be asked to change certain disturbing factual situation for the rights holder. In rem injunctions are based on the understanding of the injunctive claim as an internal part of the absolute right, that is protected not only by the tort law or unjust enrichment system, but also by a separate system of injunctive absolute protection that in fact executes it’s erga omnes character (more on this in upcoming posts).
Website operatorts (alleged infringers) or Internet users are typically not party of a court proceedings, but theoretically, they could be. From all the three UK website blocks, only Newzbin II. was initiated after the court decision against the website operator was issued (Newzbin I.) and failed to be implemented. In other two cases, the infringing nature of a website was assessed as a preliminary question. Website operators, whose websites were to be blocked, were not party to the proceedings and thus could not defend themselves in front of the court. Similarly, Internet users, whose access is being limited, also were not in a position to defend themselves. Is this a problem?
The author of all three website blocks, Justice Arnold, addressed this question in Dramatico Entertainment in a following way:
(9) The operators of TPB have not been joined as defendants to this claim, nor has it been served upon them. They did not appear at the hearing, nor have they been represented. Nor has any user been joined, served, appeared or been represented. It might be asked why it would be appropriate for this Court to determine the preliminary issues in their absence. Counsel for the Claimants gave four answers to that question, the first three of which I agree with.

(10) First, there is no jurisdictional requirement to join or serve the operators or users of TPB. Article 8(3) of the Information Society Directive and section 97A of the 1988 Act (set out below) confer jurisdiction on the Court to grant injunctions against intermediaries whose services are used by a third party to infringe copyright. Neither Article 8(3) nor section 97A requires joinder or service of the third party.

(11) Secondly, the courts both in this jurisdiction and in other Member States have proceeded on the basis that it is not necessary to join or serve the third party. In 20C Fox v BT the operators of Newzbin2 claimed to be different to the operators of Newzbin1. I granted the order sought even though the operators of Newzbin2 had not been joined or served and no user was joined or served (although one user did apply to be joined prior to the second hearing). The same approach has been adopted by courts in Belgium, Denmark and the Netherlands. Thus in Stichting Bescherming Rechten Entertainment Industrie Neederland BREIN v Ziggo BV (case 374634/HA ZA 10-3184, judgment dated 11 January 2012) the District Court of the Hague (Judges Blok, Kalden and Loos) held at [4.42]:

“The District Court considers on that as follows. The imposing of the claimed order meets the conditions of due process. After all, the measure is imposed after a prior, fair and impartial procedure, i.e. the present proceedings. Contrary to what Ziggo and XS4ALL argue, it is not required that all its subscribers are parties to the proceedings or are heard. It provides that ‘the person or persons concerned’ must be heard. In a case like the present one, in which an order is claimed against intermediaries, such intermediaries can be considered to be the persons concerned in the sense of this provision. Said intermediaries have been heard. Any different interpretation would render the regulation for orders against intermediaries which the European legislator has implemented with the Enforcement Directive meaningless. It is inherent in such regulation that an order can be imposed upon inter alia internet providers to cease their services in proceedings to which the alleged infringer is not, at least not necessarily a party and so is not heard in it. One of the reasons for implementing such an option is precisely, after all, the situation that the alleged infringer cannot be sued, for instance because his identity is not known (see Memorandum, following the report, Parliamentary Documents II 2005-2006, 30 392, no. 6, p. 10 and 11).”

(12) Thirdly, it would be impracticable, or at least disproportionate, to require joinder or service of the operators or users of TPB. TPB was set up and originally operated by four Swedish individuals (Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström) who were convicted of criminal offences of aiding and abetting copyright infringement by the Swedish courts. It appears that, while their (unsuccessful) appeals against conviction were pending, they left the jurisdiction of the Swedish courts. While Warg is said to be in Cambodia, it is unclear where the others are. Furthermore, they have claimed that TPB is now operated by a Seychelles company called Reservella Ltd, although this is disputed. In subsequent civil proceedings brought by a number of record companies in Sweden against Warg, Neij and Sunde, the court has thus far been unable to serve the proceedings on the defendants. There is no reason to believe that any attempt to serve English proceedings on them would be any more successful.

(13) Even if proceedings could be served upon the operators of TPB, there is no reason to believe that they would seek to defend them or to make representations to this court. The BPI wrote to the operators complaining of infringement on 12 July 2011 and subsequently sent a copy of the letter by email on 10 August 2011, but received no reply. The operators’ attitude is clear from the following passage on the “about” page of TPB:


“Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us. It is therefore not possible to hold the people behind The Pirate Bay responsible for the material that is being spread using the tracker. Any complaints from copyright and/or lobby organisations will be ridiculed and published at the site.”
True to their word, the “legal threats” page of the website contains links to copies of a series of cease and desist letters sent by right owners together with the operators’ responses, which tend to the profane. The page ends:

“No action (except ridiculing the senders) has been taken by us because of these. 🙂

Nice graphs for the law firms who don’t get the hint above:

(we used to have a nice graph here, but it’s simpler to just say: 0 torrents has been removed, and 0 torrents will ever be removed.)”

There is more evidence of this kind.

(14) Turning to the users of TPB, the evidence is that there is a considerable number of these in the UK. While in theory it would be possible to identify those users, or most of them, who were using TPB during a particular period by means of Norwich Pharmacal orders directed to ISPs, that would be a costly exercise in itself. It would be wholly disproportionate to attempt to join or serve all such users, and there would be no basis for singling out particular users for joinder or service. Nor, I suspect, would most users wish to defend the proceedings or even make representations.

(15) The fourth answer given by counsel was that any findings of infringement made in these proceedings would not be binding upon the operators or users of TPB. While technically correct, I do not regard this point as particularly persuasive, since if the order sought by the Claimants is granted the operators and users of TPB will be adversely affected.

In summary, Justice Arnold accepted following arguments: 
i) nothing in the injunctive provision requires court do so,
ii) other courts did the same, 
iii) it would be impracticable, or at least disproportionate to require joinder or service of the operators or users.
I aim to examine this rather brief argument of Justice Arnold from the perspective of the European Convention on Human Rights (ECHR) and Charter of Fundamental rights of the European Union (Charter), in particular, a right to a fair trail. A right to fair trail is embodied in Art. 6(1) ECHR and Art. 47 Charter in a following way:

Art. 6(1) ECHR: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society .. or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Art. 47 of EU Charter: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.“

First, we need to recognize that website blocking proceedings are derogation from this rule. So let’s turn to the Strasbourg case-law. The right to a fair trial is an absolute right, and therefore, for example, an individual cannot be denied the right to a fair trial in the interests of the broader community (Jonathan Cooper. Procedural Due Process, Human Rights and the Added Value of the Right to a Fair Trial [2006] JR 78). Constituent elements of Article 6 may be limited in relation to certain circumstances as long as the trial as a whole remains fair (Ibid). Any constituent elements thereof are subject to the tests of strict necessity and proportionality.
Website blocking proceedings fall within the scope of Art. 6(1) because their result is decisive for private rights and obligations (Ringeisen v. Austria, No. 2614/65). As to website operators, their right to engage in commercial activities, property rights or other rights of private individuals, can be interfered with by such a result. For instance, a right to conduct a business can be limited by a blocking decision, which orders other entities (here Internet access providers) to block access to business website. Thus, a court has an obligation to provide for a fair trail to all parties that are in this way affected. It could be argued that not only website operator who is a target of the proceedings, but also users indirectly can be affected as to their rights. In most cases however, I think impact on users rights would be de minimis. It could however be the case as well, that e.g. when the blocked service is having regular paying customers (which wasn’t the case in UK blocks), the blocking decision would affect even some Internet users substantially (namely costumers of the website operator). But let’s disregard these cases now, and focus on the website operator’s right to a fair trail.
Website operator’s right to a fair trail can be interfered with as to two of its components: i) access to the court and ii) equality of arms. The main problem of a website block is not only that the court will not hear the website operator in the proceedings, but also that the website operator has no remedy how to challenge the block of his website. The court thus decides de nobis sine nobis, i.e. about us without us. Moreover, equality of arms requires that each party is afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him/her at a substantial disadvantage vis-à-vis his or her opponent (Ibid). The website operator can not object to evidence or present his legal arguments in the assessment whether his service is complying with the law. Even the criminals have a right to defend themselves, regardless of how evident their case can be. The Strasbourg court reads the set of minimal rights from criminal cases stipulated in Art. 6(3) as minimum standard also into the civil cases in scope of Art 6(1). This is a so called right to adversarial proceedings (see e.g. J.J. v. The Netherlands, No. 21351/93). That right means in principle the opportunity for the parties to a civil trial to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court’s decision.

Let’s stop for a while and try to draw an analogy to website blocking to make it more plastic for a reader. Imagine, that a rightsholder would instead of suing a domain name holder, sue a domain name authority for a cancellation of a registration. As the rights holder is the dominus litis, he does not have to name the defendant as a party. Let’s assume that he has a cease and desist claim against the domain name authority as outlined above. Now, would it be OK if the judge decides on a trade mark dispute claims only between the domain name authority and the plaintiff, without providing the domain name holder with a possibility to defend himself? Very likely not. The website block has a very similar, although bit more limited effect. The customer or readership demand in a certain country can be stopped, without providing the website operator with a possibility to defend his case.

Now let’s turn to Justice Arnold’s arguments. It is apparent that for a far trail assessment, argument of ‘there is nothing in the law’ and ‘others do the same’ is not relevant. The only argument thus remains that ‘it would be impracticable, or at least disproportionate to require joinder or service of the operators or users’.

It would certainly be disproportionate ask all the website users to join the proceedings. This is however in most of the cases not necessary, as the possible website block has usually only little interference with user’s civil rights. Certainly all the proceedings Justice Arnold dealt with, did not require the users to join in order to guarantee their right to a fair trail. As we suggested above however, it would be different if the users were paying customers, who could thus loose their money or subscriptions. But even in these cases, these users would have claims against the website operator ex post. Thus their civil right would be not necessarily infringed upon.

The different is however true for the website operator. If his website is blocked, he is stopped or substantially disadvantaged (as it can be circumvented) from conducting his business, sharing opinions, exploiting his property (see for domain names Paeffgen v. Germany, No.  25379/04,  No. 21688/05, No. 21722/05). As a recent case Ahmet Yıldırım v. Turkey (No. 3111/10) suggests, ECHR is very strict about this. The case concerned a court decision to block access to Google Sites in Turkey, which were hosted an Internet site whose owner was facing criminal proceedings for insulting the memory of Atatürk. As a result of the decision, access to all other sites hosted by the service was blocked. The ECHR observed that the blocking of access to the applicant’s website had resulted from an order by the Denizli Criminal Court in the context of criminal proceedings against the owner of another site who was accused of insulting the memory of Atatürk. The court had initially ordered the blocking of that site alone. However, the administrative authority responsible for implementing the order (the TİB) had sought an order from the court for the blocking of all access to Google Sites, which hosted not only the offending site but also the applicant’s site. The court had granted the request, finding that the only way of blocking the site in question was to bar access to Google Sites as a whole. Although neither Google Sites nor Mr Yıldırım’s own site were concerned by the above-mentioned proceedings, the TİB made it technically impossible to access any of those sites, in order to implement the measure ordered by the Denizli Criminal Court. The ECHR reiterated that a restriction on access to a source of information was only compatible with the Convention if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses.

In the light of above mentioned, it is very likely that ECHR would require that website operator has at least a chance to defend his case. Therefore as a rule, he would need to be given this opportunity and courts should not allow such injunctions without it. This however does not mean that website operator have to defend his case. If he is unwilling to participate it is his fault. But he should be at least notified about the case and given the opportunity to comment and defend himself. I don’t see why the fact that defendant appears to be non-cooperative from the outset (see Justice Arnold’s arguments), should give the court a discretion as to whether it will hear the affected party.

Last but not least, there is another aspect of the website blocking that shall be mentioned. Ahmet Yıldırım v. Turkey teaches us that the courts shall be very cautious about the scope of a ban and the guarantee of judicial review to prevent possible abuses. Otherwise, website blocks can clash with a legal principle that the rights have to be proportionate and ‘prescribed by the law’ (compare the arguments of AG in Sabam and Scarlet Extended). Justice Arnold did, I think, a good job when it comes to assessing different alternatives and their collateral damage on others. I am however not so sure, whether his conditions of the website blocks are good enough to prevent an abuse. As the number of the website blocks will be growing, these court-approved website blocks should have more strict system of checks and balances, e.g. transparency obligations by the Internet access providers or periodical review of the implementation. The website blocking orders should also foresee situations when the content of the website has changed, or foresee the ways how to narrow down the injunctions later on.

All this suggests that praxis of website blocking has to be improved to respect the fundamental rights of different parties. Otherwise, the abuses of this type of injunctions, such as this one, will appear more often. It is always more convenient to sue somebody who can give you what you want without having to argue with the opposing party. I do think that website blocks have a certain role in the online enforcement, though I am not sure whether it’s really the copyright one due to the specific nature of the user demand that has big incentives to circumvent the blocks. Website blocking can nevertheless yield some more efficient results for the rights enforcement online. However as Evgeny Morozov concludes in a different context, ‘we cannot circumvent legal procedures and subvert democratic norms in the name of efficiency alone’.

Update 7/10/2013
In the latest website block granted by Justice Arnold – FAPL, he notes:

(57) Secondly, on 25 June 2013 Mann J granted orders under section 97A concerning a website known as EZTV. He required the orders to contain an additional liberty to apply in the following terms:

“The operator(s) of the Target Website (as defined in the Schedule to this order) and the operators of any other website who claim to be affected by this Order, are to have permission to apply to vary or discharge this Order insofar as it affects such an applicant, any such application to be on notice to all the parties and to be supported by materials setting out and justifying the grounds of the application. Any such application shall clearly indicate the status of the applicant and indicate clearly (supported by evidence) that it is the operator of the website which is the subject of the application.”

This is sort of inverted principle, which I am personally ready to accept when it comes to users of the services. I am however not convinced at all that such measure is enough to avoid the trouble with right to a fair trail of the targeted website operator.

Hutko

3 thoughts on “What’s Wrong With UK Website Blocking Injunctions?”

  1. Jan Lazur

    Hi Hutko,

    Many thanks for an interesting article indeed, however, I must slightly disagree with your reasoning.

    Notwithstanding the fact that you have precisely summarised the arguments that had been put forward (or accepted) by Mr J Arnold, you have dealt with the first one (namely 'nothing in the injunction provision requires court to do so') only by concluding that for a trial assessment, it is not relevant. However, I believe that this argument was the most important one in terms of correct application of English law here.

    The relevant 97A was inserted into English CDPA in 2003 by the implementing regulations for the EU information Society Directive, Article 8(3) of which provides that rightsholders must be 'in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright'.

    The exact wording of Section 97A CDPA ('Injunctions against service providers') reads as follows: '(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. (2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant…'

    When Mr J Arnold was deciding this case, he was not applying his judicial discretion, he was rather applying exactly the wording of Section 97A CDPA, which does not even allow a court to make granting of an injunction conditional upon hearing the respective website operators.

    Furthermore, Section 97A CDPA and Article 8(3) of the InfoSoc Directive refers only to copyright infringement, thus I am not sure whether an analogy to trademark disputes would work here.

    If we question compliance of the website blocking injunctions with ECHR and/or Charter of Fundamental Rights of the EU, we basically question compliance of Section 97A CDPA with these legislative instruments.

    For example, even in France the website operators would not be heard – there by a magistrate's injunction, a French ISP my be ordered to stop hosting content infringing copyright or to block access to it. This is understood as a preventive measure as the question whether or not actual infringement has occurred has not been proved yet under the magistrates's supervision.

    I agree with how the case of Ahmet Yıldırım v. Turkey was decided, but this was not the case which would fall under the application of Section 97A CDPA.

    When deciding the website blocking cases, I do not think Mr J Arnold was circumventing any prescribed legal procedures.

    There is one question I would really like to know your answer to… if Section 97A CDPA contained an explicit condition that an injunction may not be issued unless a website operator is given a proper chance to be heard, would such a statutory provision be in compliance with the provision of Article 8(3) of the Info Society Directive?

    Well, speaking for myself, in most of the cases I agree with Mr J Arnold's reasoning, so I've felt an urge to step up in his defence :-).

    Jan

  2. Huťko

    Hi Jan,

    Of course I am very happy if somebody disagrees with me as a disagreement only aids the pursuit of the knowledge 🙂 However, I think, you did little bit misread my argument. I said 'it is apparent that for a far trail assessment', which is different from what you say 'that for a trial assessment'. I did not say it is irrelevant for the application of the Enlgish law, but for the assesment at ECHR level. On this point, my friend, a barister Francis Davey, also a reader of this blog, might give us better insight.

    But, despite of the fact that I am by no means an English lawyer, I try to exlpain why I think your arguments are not enterily right. You argue on several levels, so I try to address is accordingly.

    "Notwithstanding the fact that you have precisely summarised the arguments that had been put forward (or accepted) by Mr J Arnold, you have dealt with the first one (namely 'nothing in the injunction provision requires court to do so') only by concluding that for a trial assessment, it is not relevant. However, I believe that this argument was the most important one in terms of correct application of English law here. The relevant 97A was inserted into English CDPA in 2003 by the implementing regulations for the EU information Society Directive, Article 8(3) of which provides that rightsholders must be 'in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright'. The exact wording of Section 97A CDPA ('Injunctions against service providers') reads as follows: '(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. (2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant…' When Mr J Arnold was deciding this case, he was not applying his judicial discretion, he was rather applying exactly the wording of Section 97A CDPA, which does not even allow a court to make granting of an injunction conditional upon hearing the respective website operators."

    As I said, this is not what I wrote (see above). Despite that, from what I can tell, Justice Arnold did an assesment as to proportionality of the injunctions and also several times mentioned that he will exercise his discretion. After all, I can not see how a judge can not have a judicial discreation when applying certain provision. Even in a civil law country he has lot of means how to exercise it and I would be suprised if the English situation given the common law tradition (see e.g. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)) would be different.

    "Furthermore, Section 97A CDPA and Article 8(3) of the InfoSoc Directive refers only to copyright infringement, thus I am not sure whether an analogy to trademark disputes would work here."

    Union law framework provides for very same injunctions also in case of industrial rights (Art. 11 Enforecement Directive). How this fits English law I don't know – this debate appeared first in English L'Oreal v. eBay case, which was a trade mark case.

  3. Huťko

    "If we question compliance of the website blocking injunctions with ECHR and/or Charter of Fundamental Rights of the EU, we basically question compliance of Section 97A CDPA with these legislative instruments.

    Each provision always covers several factual scenarios, let say scenario A, B, C, D. If scenario C and D are against the fundamental rights, they should be rejected. It does not however say anything about compliance of the provision, because this still applies to scenarios of A and B. What I see as the problem is a concrete form of excercising a claim, not a claim as such. Unless the all factual scenarios of the provision are not against the human rights, the provision itself can not be contrary to the Charter, because it also holds cases that are human rights complaint. No such problem is here. The provision is capable of human-rights-respecting application.

    "For example, even in France the website operators would not be heard – there by a magistrate's injunction, a French ISP my be ordered to stop hosting content infringing copyright or to block access to it. This is understood as a preventive measure as the question whether or not actual infringement has occurred has not been proved yet under the magistrates's supervision."

    I am not sure what exactly you mean here. Ex parte injunctions? Then, you have to distinguish ex parte proceedings for preliminary injunctions and permanent injunctions. Even in ex parte proceedings, you are party to the proceedings and can challenge the injunctions.

    "I agree with how the case of Ahmet Yıldırım v. Turkey was decided, but this was not the case which would fall under the application of Section 97A CDPA."

    I did not claim that the case is the same. But I don't see why it could not apply in some scenarios of Section 97A CDPA – when a free speech is in question and plus when we question whether a interference was prescribed by the law. Plus, you did not give any arguments to support your claim, so it's difficult to see what you mean.

    "When deciding the website blocking cases, I do not think Mr J Arnold was circumventing any prescribed legal procedures."

    The very conclusion is not saying that Justice Arnold did circumvent something. I just meant to say that website operator's right to a fair trail was most likely not guaranteed. The very end is only a general remark.

    "There is one question I would really like to know your answer to… if Section 97A CDPA contained an explicit condition that an injunction may not be issued unless a website operator is given a proper chance to be heard, would such a statutory provision be in compliance with the provision of Article 8(3) of the Info Society Directive?"

    Unless CJEU would give us his opposite human rights assesment based on application of the Charter – yes. And I would be very suprised if he did. Art. 8(3) is also not an absolute remedy and is subject to Charter scrutiny as every other secondary legislation rule. Moreover, CJEU by applying conditions of the Enforcement directive, gave member state's courts quite big room for such fundamental rights assessments (see this blog post ). I doubt that CJEU would ever generally rule out right to be heard from these cases. His jurisprudence is very case specific.

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