Big tech accountability? Read how we got here in  The Closing of the Net 

 

TL;DR   A website blocking order is a modern form of censorship. In the wrong hands, it is a dangerous weapon. Blocking orders provided for in Clauses 91-93 of the Online Safety Bill could be used in the most egregious cases to block overseas Internet services that refuse to comply with the Bill. They are not suitable for targeting 'big tech' social media platforms. Blocking orders have been used in the UK for copyright enforcement since 2011, and there is a body of caselaw to draw on. If these orders are used, they should be precise and specify the exact locations of the content, site or server to be blocked.

 An Internet blocking technique used to address online copyright infringement has been quietly slipped into the Online Safety Bill. [1] The Bill will address all Internet providers that offer their services in the UK, who will have to tackle illegal content, search it out, and act against it, in order to stop it spreading online [See What's the point of the Online Safety Bill?].

Under Clause 125 of the Bill, Internet services could find that they are blocked if they fail comply with these content moderation requirements, regardless of where in the world their servers are located. Blocks could be put in place by broadband providers so that users are prevented from accessing services. Alternatively, a service could be dumped from an app store, so that UK users cannot download or subscribe to it.

The content removal criteria will be drafted by the Department of Digital, Culture, Media and Sport together with the Home Office. Service providers could even be asked to install Home Office approved content moderation systems. The details will be published in new Regulations to come after the law has been passed by Parliament. [Online Safety Bill: Ministers to get unprecedented powers over speech ]

A priority for the Bill is to seek out and remove child sexual abuse material, which addressed by UK criminal law. [Schedule 6]. Another priority is to remove terrorism content, as defined under UK anti-terrorism laws [Schedule5].  Other priorities including  harassment and stalking, threats to kill, assisted suicide, sexual exploitation and fraud, are listed in Schedule7.

The Bill also asks Internet services to seek out and remove other types of content that is not illegal, but is deemed either harmful to children or harmful to adults. [Clauses 53 and 54] The precise categories of the content to be removed will be determined by UK government Ministers in new Regulations to follow after the Bill has been passed by Parliament. [What's the point of the Online Safety Bill?]

Ofcom, the regulator, is also the enforcer. The Bill provides for a quiver of powers that Ofcom can use where Internet services do not comply [Clause 103-106; 110-125]. One of those powers allows Ofcom to apply to the courts for blocking orders (Access restriction orders, Clause 125), in cases  where an Internet service does not comply with the UK government requirements set out in the Bill. Dame Melanie Dawes, Ofcom chief executive, (pictured above) told the Joint Committee on the Draft Online Safety Bill on I November 2021, that the courts would require a high threshold of evidence [2]. 

Website blocking orders are a technical way to stop people from seeing or interacting with Internet content. A blocking order could be requested where a service fails to comply with the removal of illegal content. A blocking order could also be sought if a service fails to comply with the mandate the suppression of the 'legal but harmf content, and preventing children from accessing 'adult' material.

There is a process that must be followed, before Ofcom can apply for the order. First, it must provide a warning notice or a non-compliance notice. In the case of illegal content, the notice would require the Internet service to install Ofcom-accredited content moderation systems, which will be designed  to Home Office approved standards. [Clause 105(9)  and 105(10)]. However, there is a 'catch-all' clause where [I paraphrase] the process is deemed unlikely to get the required response from the Internet service, and it was deemed that following the process would  be 'unlikely to 'prevent significant  harm' to users in the UK.  In those cases, it seems that Ofcom could apply for the court order, without going through some of the other steps first. 

The Bill prescribes that the blocking order should  require broadband providers and app stores to 'put in place arrangements, to withdraw, adapt or manipulate the access facility in order to impede users' access (by means of that facility) to the relevant service (or to part of it)' [Clause 125)] The keyword here is 'impede users access' .

Blocking orders can be implemented by blocking a url which could be a web page, or even an individual image, sound or video track. A block could also be imposed by blocking the IP address, or through the DNS (Domain Name Service). The IP address and the DNS refer to the unique numbering system that underpins the entire Internet and enables web pages and content to be found. However, this method of blocking is problematic because it risks blocking lawful content that is hosted under the same identifier. The case of Premier League v BSkyB illustrated this problem, where a blocking order for copyright infringement also blocked the Radio Times.[3] 

A blocking order is a modern form of censorship. It is a very blunt instrument and should only be used with caution. A court, in granting such an order, would usually examine not only the rationale, but also the technical implications of what it is being asked to to. It will also consider the implications for freedom of expression under human rights law. This is not only the rights of whoever posted the content, but may also be the rights of others who post on the same service, and have acted lawfully.

Examples can be found in cases in the UK courts, with regard to copyright enforcement. The first case to be heard in the High court was 21st Century Fox versus BT in 2012 [4]. In this case, BT brought the challenge, in order to ensure that it would receive a list of the specific content to be blocked, with precise locations and could not be asked to generically monitor and that it could not be held responsible for the content being blocked. The blocking order was applied for by copyright interests under Article 97A of the Copyright, Designs and Patents Act 1988. The E-commerce Regulations which implemented the EU's E-commerce Directive, Article 12 (3) also applied.

I attended the hearing for this case in June 2011.  In court, BT's barrister, Antony White QC, was remarkably prescient: "It would be wrong to see this as limited. If BT is asked to block, there will be more [...] If this goes ahead it will apply to all ISPs and much more widely than just copyright".

Since then, there has been raft of copyright enforcement blocking orders granted in the UK High Courts. Some of the orders obtained blocked sites and services outside the UK. For example, an order was obtained against The Pirate Bay, a bit torrent server, that was originally operated from Sweden. At the time the order was granted, it had no servers in UK or EU jurisdiction and the site's owners were not in court. [5]. There is a write up of some of these cases in my book 'The Closing of the Net'. 

In the context of the Online Safety Bill, Ofcom might seek to block overseas services as the only other method to prevent the content being seen in the UK. These services could be in data centres in places such as Sao Paolo, Texas or Dublin. This is what one would expect to be the thinking behind these provisions.

It costs money to go to court, and so actions would usually only be taken in the most egregious cases. It also requires a considerable technical understanding on the part of the lawyers bringing the case, and the judges. Correct me if I'm wrong, but blocking orders, if they are to be codified into law, should be aimed at solely at the most egregious services that can be proven to have broken the law, and have substantial user bases, with the resource to move their servers around the world to escape regulators and legal moves.

This is not the way the Online Safety Bill's powers are generally promoted by the Bill's proponents, who believe that these provisions are a tool to get at the big tech companies. This is questionable. The likelihood of blocking orders being effective, or even workable, as a sanction against the mega-platforms with their servers across the world in multiple data centres and millions of lawful UK users, would seem to be misconceived.

The big risk with blocking orders is that an irresponsible government Minister could mis-use the power to sanction lawful services that are merely inconvenient. This is a risk that Parliament should not allow.

Blocking orders are a blunt instrument and - in the wrong hands - dangerous weapon. If they are going to form part of Ofcom's armoury, they at least need to have a proper foundation within the legal framework of the Bill and the precise circumstances in which they could be used need to be very clear.

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Iptegrity is made available free of charge under a Creative Commons licence. You may cite my work, with attribution. If you reference the material in this article, kindly cite the author as Dr Monica Horten, and link back to Iptegrity.com. You will also find my book for purchase via Amazon.

About me: I've been analysing analysing digital policy for over 14 years. Way back then, I identified the way that issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing. For many years before began my academic research, I was a telecoms journalist and an early adopter of the Internet, writing for the Financial Times and Daily Telegraph, among others. 

Please get in touch if you'd like to know more about my current research.

If you liked this article, you may also like my book The Closing of the Net which discusses the backstory to the Online Safety Bill. It introduces the notion of structural power in the context of Internet communications. Available in Kindle and Paperback from only £15.99!

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Photo: Dame Melanie Dawes, Ofcom Chief Executive, giving evidence to the UK Parliament Joint Committee on the Draft Online Safety Bill, 1 November 2021. Screenshot by me via https://parliamentlive.tv/ 


[1] Online Safety Bill as introduced to the House of Commons  on 17 March 2022

[2]Draft Online Safety Bill Oral Evidence transcript 1 November 2021  

(3) The Football Association Premier League Limited And British Sky Broadcasting Limited in the High Court of Justice Case No: HC13F02471 16 July 2013 

[4] 20th Century Fox v BT In the High Court of Justice Case No: HC10C04385 Neutral Citation Number: [2011] EWHC 1981 (Ch) 28 July 2011

[4] Dramatico Entertainment Ltd vs British Sky Broadcasting Limited in the High Court of Justice, Case no HC11C04518, 20 February 2012.
For an account of the three cases here, please also see my book The Closing of the Net 

 

For another view on this please see Heather Burns, Open Rights Group Access Denied: Service Blocking in the Online Safety Bill 

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Iptegrity.com is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing. I am on the Advisory Council of the Open Rights Group.  I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. For more, see About Iptegrity

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