4th post in a series on the government's response to  Hargreaves

This article was written before the leaks of Jeremy Hunt’s speech tonight at the Royal Television Society convention. If those leaks are correct, then understanding Ofcom’s proposals becomes  all the more pertinent.

Having advised that Section 17 and 18 of the Digital Economy Act are not appropriate, Ofcom is now working on how fast it can put web blocks  in place. But its its proposals are unlikely to be consistent with EU law and are almost certainly not consistent with a country which prides itself on a free media. Ofcom says the process in the DE Act

Section 17 and 18  will take too long, because it involves a full court hearing, pre-trial notices, and other lengthy litigation procedures. The rights-holders, says Ofcom, want a quick and cheap, administrative  process which does not involve the courts. They want to get sites offline in hours not months. the Ofcom report states that:

"Site blocking could play an important role in helping to tackle online copyright infringement"

But it also makes clear that it wants measures which will address "the copyright owners requirement"  for " a timely implementation of blocks and a flexible approach from service providers to tackling circumvention".  This means that they acknowledge that users can get around measures, and precisely because of that, they want stronger, sharper, faster measures.

Ofcom’s report discusses different blocking scenarios, and on that basis, it proposes a range of techniques to suppress alleged infringing content.

In essence, Ofcom proposes a regime of notice and take-down, followed by a cocktail of mostly automated, administrative measures, any one of which would drop a suitably sharp digital blade down onto  an alleged infringing website.

Ofcom is proposing deep packet inspection because it is the only technology which, in Ofcom’s opinion, will  not over-block. Deep packet inspection entails the interception of web traffic to see what someone is looking at, and on this basis, this use of it falls foul of EU privacy law.

"Of the techniques we consider to be the most effective, only blocking based on deep packet inspection would appear to offer a level of granularity where over-blocking would not be a major concern."

Ofcom  is suggesting a range of measures based on the US Protect-IP Act which are designed to work where blocking of the site is not possible, for example, because the site moves outside UK jurisdiction. These measures include working with credit card companies and banks to  block access to finance. They also include blocking web domains, and  interfering with search engine results, which would put Ofcom on a par with the Chinese government.

"Site blocking could be made more effective where it is supported by complementary measures, such as search engine de-listing and notice and takedown processes. Such measures would help to address to the known limitations of the techniques we review. "

For example, search engines such as Google would be put under an obligation to delete websites from their indexes, and to bury sites such that they do not appear in search results. Nominet, the web domain registry could be mandated to delete domains – meaning that sites would simply disappear from the Internet.

These blocking obligations would be forced onto Google and Nominet via an administrative process, meaning that there would be no hearing, and no legal assessment of whether or not the sites were really infringing. The problem with these measures is not whether a site which offers illegally camcorded films is taken down (although  in a democratic society such a site is also entitled to a hearing and a judgement), but  that such web blocking measures  could be used to suppress information, including political information. 

For example, copyright is frequently used to repress publication of material obtained under Freedom of Information Act requests, according to  Professor Lilian Edwards of Strathclyde University.  

The digital guilllotine therefore is likely to kill off public interest information, as well as the ‘knock off’ films. This would put the UK at odds with European law.

Most telling is the proposal that ISPs should be exonerated from liability against being sued by sites which they have blocked. Thus the  presumption would be that the ISP is liable for the content travelling on its network and is entitled to block. This  is a total reversal of the current position under EU law, which enshrines the ISPs as ‘mere conduits’.

"Liability of service providers: If the system of site blocking is to be effective, ISPs will need to be protected from any liability that may arise should over-blocking occur as a result of an implementing injunction."

 The  political climate is such that Ofcom may be allowed to get away with these web blocking  proposals, and a largely tame media is uncritically reporting it. That is very worrying for British democracy.

The leaked report of Jeremy Hunt’s speech to the Royal Television Society was in the Financial Times: Google fights move to force site blocking

 See my previous postings on the UK government's web blocking proposals Hargreaves response: The sharp under-belly of enforcement  and UK domain blocking – can Nominet keep out the baying rights-holders?

Please attribute this article: Monica Horten (2011) Ofcom invites private bids to run Appeals Process   http://www.iptegrity.com  14 September 2011 .

For more information on the background to Internet copyright enforcement, please see my book
The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'

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