Within the EU, web-blocking injunctions have become an increasingly prevalent mechanism utilized by copyright holders to protect against the unauthorized use of their copyrighted materials online. Recently extended to protect trademark rights, these injunctions are heralded by rights holders within the music, film, and luxury goods industries, as an incredibly effective method in protecting copyrighted/trademarked material from online infringement. However, these injunctions should be considered a weapon of last resort in fighting online infringement, rather than a standard tool of enforcing intellectual property rights (IPRs). Implementing these injunctions or filtering mechanisms should be done so sparingly, as their increased use endangers fundamental civil liberties such as free speech and due process.
Injunctions, filtering and their benefits
Web-blocking injunctions allow for Internet Service Providers (ISPs) to completely bypass the actual site holder and block their users from accessing sites that use copyrighted material without permission, or sell counterfeited goods. These injunctions are viewed as a much more effective means of protecting copyrighted materials than their precursor: the notice and takedown procedure (“N&T”), a privatized and extrajudicial method that allowed a copyright holder to send notice to host-providers that hosted a site using copyright infringing material, requesting that the material be removed or the site be taken down. As N&T notices are not judicially supervised, they can be ignored, and are often left to the discretion of the host-provider to determine whether the content at issue is in fact infringing and should be removed. In contrast, a court supervises the granting and enforcement of web-blocking injunctions, and therefore they are not susceptible to the same pitfalls.
Web-blocking injunctions are providing a tool to tackle the rampant infringement of IPRs taking place online. As it is a common occurrence on the internet today that once a site is taken down in response to a takedown request, a new one pops up in its place, the greatest benefit of the web-blocking injunction is its effectiveness in stopping this “mushrooming effect”. With these injunctions the blocking process is streamlined, and, by design, prevents content from going viral. As opposed to the N&T method, which requires a new takedown request be sent to each new infringing website, with web-blocking injunctions, a rights-holder need not reapply to the court when a new site is created with infringing content. Instead, the rights-holder must only notify the ISP, who then blocks access to new sites holding the same content protected by the first injunction. Stopping this mushrooming effect is critical, as it is virtually impossible for copyright holders to assert their rights and get every infringing site taken down once their content has gone viral.
Depending on the point at which access to the website is cut off, mechanisms similar to injunctions have been developed that minimize the results acquired by specific search terms, without removing a website from cyberspace. These methods have been utilized by governments for other circumstances aside from the protection of copyright, in so-called “filtering schemes”. Under these schemes ISPs will offer their users access to only a set portion of Internet content on an opt-in or mandatory basis. Unlike the web-blocking injunction where the government and ISPs do not become involved until an injunction is sought by a copyright holder, filtering is more proactive as governments and ISPs actively decide which content users should be shielded from. For example, at the encouragement of governmental bodies in the UK, many ISPs have agreed to set up the so called “porn wall”, to block their user’s access to sites that have been reported to contain child pornography. Additionally, it has been suggested to expand such filtering schemes to social media platforms as a means of preventing the incitation of violence that often occurs on social media. By having ISP’s block access to sites that incite violence, such filtering has been viewed as a means of protecting public safety. Furthermore, it has been contemplated by some governmental bodies that filtering schemes could be utilized as a means of minimizing acts of terrorism. By blocking users access to sites that promote radical views, governments can keep extremist groups from gaining followers and support through their online presence.
Government authorities and copyright holders are not the only ones who stand to benefit from web-blocking and filtering mechanisms online. In order to preserve an individual’s “right to be forgotten,” it has become essential that the law provide for the removal of undesirable personal information provided through search engines. De-indexation fulfills this need and has become a necessary means of protecting internet users right to privacy. With de-indexing a site is removed from the search engine index, but not from the source web page. Essentially, de-indexation allows for the removal of search results; although the websites containing such information technically still exist, users cannot access it utilizing a search engine. One recent court case, Google Spain SL v. Agencia Espanola de Proteccion de Datos, addresses this mechanism and proposes safeguards to better protect an individual from harmful search results. Pursuant to the dictum of this judgment, the operator of a search engine is obliged to remove links to web pages, published by third parties and containing information relating to that person obtained in this way.However, this right is not absolute. The Court also stressed the importance of balancing the right to privacy against the right to information access by ruling that the right to an individual’s request may cease to exist when access to the personal information is a justified interest of the general public. Internet users’ right to access personal information through search engines must also be respected, depending “on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.” [para. 81]
Although governmental filtering schemes and de-indexation are similar to web-blocking injunctions, the difference is that web-blocking injunctions are granted by an independent court and with the observance of due process guarantees. While filtering schemes highlight the potential benefits web-blocking has to offer, and are often implemented with the public good in mind, it is not hard to imagine how such filtering could get out of hand leading to an ever increasing amount of blocked content online. It is similarly easy to imagine how de-indexiation could be abused, and become an overall detriment to the free access of information that the internet was created for. Therefore, the importance of internet regulations that are judicially supervised like the web-blocking injunction, cannot be understated.
Arguments against injunctions: marketplace of ideas and due process
Although web-blocking injunctions have their obvious benefits, there is a great deal of criticism surrounding the rise of web-blocking injunctions. The most widely-encompassing argument against regulating citizens’ internet use is that these injunctions infringe upon free speech and fair competition. Web-blocking injunctions have been viewed as threatening to impugn the marketplace of ideas by limiting the free flow of information online. With such sensitive civil liberties implicated, these injunctions give rise to a line-drawing controversy because it is difficult to determine how much censoring is too much or if implementing web-blocking measures would create a slippery slope for eventual government control over cyberspace. It is also important to note that these injunctions aren’t a full-proof solution to copyright infringement or to ridding the internet of dangerous content. With the enforcement of any internet regulation, there is a portion of the population who can manipulate the system to get around blocks and ultimately access the censored content anyway (e.g. via proxy servers).
Another major problem that specifically arises with ISP blocking is the inadvertent “over-blocking” of legitimate sites, observed since ISP default filtering was first introduced in the UK. Some examples of over-blocked categories include sites concerning: sex education and advice on sexual health, help with sex and pornography addiction, support services for rape and domestic abuse, child protection services, suicide prevention, libraries, parliament, government and politicians, information about eating disorders, and drug advice. These search terms contain a wide variety of information to which it is crucial that young people have access. Rather than fulfilling the goal of protecting children from obscene material, online bullying, and cyber predators, these filters do more to leave the most vulnerable internet users in the dark by cutting them off from the help they need.
One of the biggest challenges in combating this over-blocking problem is the identification of over-blocked sites, which is particularly difficult due to the fact that ISPs do not provide checking tools to allow website owners to determine if their site is blocked. Ironically, “under blocking” issues have arisen as well, with a European study testing parental control tools revealing that under-blocking for adult content ranged from 5-35%. The extreme lack of public scrutiny surrounding the filtering lists creates the potential for them to be expanded to stifle dissent for political ends.
Web-blocking injunctions have also been used to specifically target terrorist propaganda and blatant opposition to national values proliferating online. Utilizing web-blocking in this context to combat online extremism has been criticized for being a proactive process where authorities actively seek out material to ban. As is common for many other censoring techniques, free speech concerns have also been raised because this technique could lead to the removal of content that may be “extremist” but not necessarily illegal. Web-blocking must be carefully applied to not merely rid the internet of content that the government finds unsavory or in opposition to their values.
Given that most modern governments provide for some form of the right to due process, the fact that these injunctions bypass the actual infringing party and often shut down sites without the site holder’s knowledge, gives rise to great concern. In not providing any notice to the site holders when their site is blocked, these individuals are denied the right to object to the injunction. Site holders may not become aware that their site is blocked for an excessive period of time. Also, unlike N&T procedures, web-blocking injunctions do not give a site holder the option of removing the infringing material prior to blocking their site. For site holders, this lack of notice and absence of choice creates a source of great criticism for web-blocking injunctions.
To combat these concerns, prior to granting an injunction, courts within the EU have begun to take into consideration certain factors to ensure that they are not “overstepping” their authority and to make sure that such crucial rights of the people are not flippantly ignored, among these considerations are: (1) the effects of blocking on legitimate communication (2) the public interest in disabled information (3) and whether the alternatives to accessing such information are available.” Similarly in, Australia, another country that has noticed a rise in web-blocking injunctions, takes into account similar considerations such as (1) the flagrancy of the infringement, (2) whether disabling access is proportionate response given the circumstances, (3) whether it is in the public interest to disable access to site, and (4) what the impact would be on persons that would be affected by judgment. Furthermore, Australia has addressed the due process concerns that are implicated in these injunctions by allowing the infringer to be joined to the party if they apply to the court.
Everybody on board?
While the EU has been much more active in utilizing web-blocking injunctions to prevent copyright infringement, and has taken steps to make sure the process does not unnecessarily infringe on internet users rights, only a single case has been reported from the U.S. of a successful web-blocking injunction. Instead of web-blocking injunctions, the United States still heavily relies on the N&T procedure or the “DMCA takedown” for copyright holders to protect their materials online. However, data gathered in a recent study concludes that the DMCA process, is often not being used as intended but “for other purposes: to create leverage in a competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism, commentary and fair use.” As the popularity of the internet is virtually the same in both the United States and Europe, it is interesting to analyze the State’s continued reliance on the N&T measure and their hesitance in adopting the web-blocking injunction.
The United States’ reluctance in adopting the web-blocking injunction can be explained by the fact that government involvement in matters pertaining to free speech and expression have historically been viewed with great skepticism. Based on the prevailing American view that increased government involvement is more likely to threaten free speech than protect it, internet regulations in the United States have not been popularly favored. For example, in 2011 two bills (the Stop Online Piracy Act and the Protect IP Act) were proposed to mirror EU regulations on piracy, but faced so much protest by internet users and the internet industry that they ultimately were not passed. Overall, the implementation of a judicially supervised monitoring mechanism like the web-blocking injunction seems to be in too tense of a conflict with the prevailing American stance of hands off government. Although the N&T method has been proven to be less effective than web-blocking injunctions, for now, less effective online protections of copyrighted materials appear to be a price Americans are willing to pay to avoid government involvement online.
Given the apparent reluctance to regulating the internet through web-blocking injunctions in America, the fact that the EU is currently proposing even further online regulations is concerning to the overall freedom of the internet. In a recent report by the Legal Affairs committee of European Parliament, a draft of a proposal on a new provision to the Directive on Copyright was accepted which would create an obligation for ISP’s to prevent the availability of infringing content by adopting proportionate and effective filtering measures. This change to a more active censoring scheme has received criticism based on the view that it “would affect dramatically the functioning of the internet and introduce brand-new obligations for online actors (online content sharing service providers)” while it has also been praised as a means of closing the “value gap” in which ISP’s financially benefit from “building a huge business around their copyrights by gaming the safe harbor exemptions in the law, which mean it is absolved of guilt if its users upload music without a license and only has to comply if told to take it down.”
By making ISPs have an affirmative duty to censor copyright infringing material, these regulations aim to make sure that copyright holders receive the appropriate compensation for their work, and ISPs do not receive a secondhand benefit from their user’s using their services to exploit copyrighted material. While making ISPs have such an obligation is obviously favored by copyright holders, the same cannot be said for internet users who argue that such censorship is a violation of their rights. As the right to free speech has often been viewed as having a corollary in a right to access speech, such censors are viewed as even further limiting user’s access to information. This issue obviously raises the question of whose rights should be paramount when considering internet regulations, the internet user’s or copyright holders.
Ultimately, web-blocking injunctions can be incredibly effective for protecting copyrighted materials online, and in an increasingly digitized society they may be a necessary evil. Perhaps putting increasingly more obligations upon ISP’s like the EU has suggested may be the only way for copyright holder’s to protect their rights online. Although they provide their benefits, it should be kept in mind that web-blocking injunctions and internet regulations do not come without a cost. It is crucial that rights to due process and free speech are kept in mind at all times for these injunctions to remain a useful tool in combating the online piracy problem. Not only must copyright holder’s rights be considered, but internet user’s rights, and those of the ISP’s must be considered as well, and it is apparent that any form of regulation in this realm will always require a delicate balance of the interests of these parties. Therefore, the decision to block access to a website should be left to the courts, and should be determined by following a procedure tailored in a way to allow other stakeholders to present their position and allowing the court to make a fully informed decision.
Rachael Taylor, Tayler Belinske, summer interns from the Maurer School of Law at Indiana University Bloomington
Consultation: Łukasz Lasek