Sunday, April 28, 2013

International Case Law on Web/Internet Blocking


WP: 958/2013
Bytes for All
Federation of Pakistan etc

A Brief Overview of the Case Law Available On Blocking of Websites Internationally

Respectfully Sheweth:-

That Your Lordship had instructed me to collect existing case law internationally that pertains to our case. The following case law is instructive:-

1.      Yildrim v. Turkey (December 2012)
-        In this case European Court of Human Rights (ECHR) decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10 of the European Convention of Human Rights (ECHR Law).
-        In 2009 the Denizli Criminal Court ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Mustafa Kemal Atatürk, the founder of Modern Turkey. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.
-        The blocking order was submitted for execution to the Telecommunications Directorate (“TİB”). Shortly afterwards, the TİB asked the court to extend the scope of the order by blocking access to Google Sites, which hosted not only the site in question but also the applicant’s site. The TİB stated that this was the only technical means of blocking the offending site, as its owner lived abroad.

-        The TİB blocked all access to Google Sites and Mr Yıldrım was thus unable to access his own site on which he used to post academic work. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court.
-        The Court found a violation of ECHR law as the measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law. The Court noted that the internet had now become one of the principal means of exercising the right to freedom of expression and information.
-        However it also stated that under Turkish law a court could order the blocking of access to content published on the Internet if there were reasons to suspect that the content gave rise to a criminal offence but that neither Google Sites nor Mr Yıldırım’s site were the subject of court proceedings and that the law did not authorise the blocking of an entire Internet domain such as Google Sites.
A press release from the ECHR is attached herewith as Annex A. Full judgment- available only in French- is attached as Annex A/1 to this document.

2.      Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (November 2011) Relevant paragraphs: 45 – 52
-        This is an ECJ decision involving an order to block and filter certain data in order to protect intellectual property rights.
-        SABAM (A Belgian collective society - Société belge des auteurs, compositeurs et éditeurs) wanted the ISP Scarlet to install a generalised filtering system for all incoming and outgoing electronic communications passing through its services and to block potentially unlawful communications.
-        The ECJ ultimately held that the filtering and blocking system in question was contrary to EU law due to it being too general and broad. The Court ruled it would violate fundamental rights, more particularly the right to privacy, freedom of communication and freedom of information. In addition, it breaches the freedom of ISPs to conduct business. A fair balance must be struck between the protection of copyright and the protection of the fundamental rights of individuals affected by such measures.
-        The ruling did not, however, create an absolute prohibition on the practice of blocking internet sites. It was careful to state that such restrictions would be valid so long as done in a proportionate fashion for a legitimate purpose, in accordance with the law.
Full judgment is attached as Annex B to this document.

3.     Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (Pirate Bay Decision) (February 2012) Relevant paragraphs: 4-8, 11-13
-        Similar to SABAM this case involved an order for a blocking injunction restricting access to a peer-to-peer file sharing website by customers of retail internet service providers where that access infringed record companies' copyright. However, in contrast to SABAM, in this instance the High Court of England and Wales upheld the order.
-        The Court found that the terms of the order were not contrary to the Charter of Fundamental Rights of the European Union art.10 or art.11 as they were proportionate, both between the parties and between the claimant and the users of defendant ISP’s services. According to the Court, it was appropriate to implement IP address blocking in order to circumvent the defendant's clean feed system since it would not result in over-blocking as the defendant's IP address was not shared.
This may be distinguished from our situation on the following ground:
-        This is a copyright case. There is much a lower threshold for bans vis a vis copyrights issues.  This situation does not apply to ours, where the issue is of general morality and not copyright.
Full judgment is attached herewith as Annex C

4.      Twentieth Century Fox Film Corp v British Telecommunications Plc (October 2011)
-        Again similar to the Dramatico and SABAM cases, the High Court of England and Wales considered an injunction in favour of the applicant film studios requiring the respondent internet service provider to block access to a website which provided links to pirated films.
-        Again the Court found the order was proportional and "prescribed by law"  and so within art.10(2) of the Convention.
As above this is distinguishable on grounds of copyright.
Full judgment is attached here with as Annex D

Research Courtesy MLDI's Legal Counsel Ms. Nani Jansen 

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