Legislation to block websites - a move too far?
The UK could be about to adopt some of the most stringent anti-piracy legislation seen to date. If a House of Lords amendment to the Digital Economy Bill is passed, the UK could be the first country to impose measures that could lead to websites, such as Facebook and YouTube, being blocked. Will this protect online content or undermine the digital economy it seeks to protect?
The UK government committed itself to tackling the problem of illegal peer-to-peer file-sharing in the Digital Economy Bill. It included provisions requiring ISPs to participate more actively in tracking file-sharing, alerting rights holders and warning identified infringers. If these measures are not sufficient, they may be required to take "technical measures" such as throttling or even suspending internet connection.
These measures have been controversial, both in the UK and abroad. France had to amend the process for its so-called HADOPI "three strikes" remedy after criticism from the European Parliament about cutting off internet access without due process. The European Commission also wanted to introduce a Europe-wide three strikes solution as part of the EU Telecoms Reform Package, but this was voted down following strong opposition. The UK government hoped to avoid some of these pitfalls by learning the lessons of other countries, but the House of Lords amendment may cause difficulties.
The amendment grants courts the right to order an injunction to block websites that contain a "substantial" proportion of infringing material. This is a significant change in direction for the Digital Economy Bill. The other provisions in the bill focus on tackling specific cases of infringement, as do the notify and takedown procedures. The aim has always been to try to remove infringing content where possible and ultimately enforce against the individual user.
However, the new proposal takes a wider approach. The lack of clarity regarding the meaning of "substantial" has led to legitimate concerns that some of the major social networking sites, such as Facebook, Bebo and YouTube, could be targeted. The nature of these sites, the quantity of content and their high proportion of user-generated content mean it is impossible to police these sites entirely. All are likely to contain a proportion of infringing content. As drafted, such websites could be blocked under the proposed legislation. In practice, it is unlikely such major social networking sites would be blocked given the public outcry that would inevitably follow.
The real issue is how such measures will work within the realities of the digital economy. Interactive media has become a fundamental part of consumer online interaction and for businesses to connect with the public. Where the public are encouraged to self-expression, there is always a risk of copyright infringement.
The challenge is to harness interactivity and generate commercial advantage from it even if there is infringement. A number of the large US rights holders have agreed deals with social networking sites such as YouTube to monetise the content on the site through a revenue share, regardless of whether the content was posted legally or not. Not only do the rights holders generate revenue, but they have the commercial benefit of free publicity, which might drive users to their own legitimate offerings.
It has long been recognised that finding fair and effective measures to tackle piracy is very difficult. This can be seen through the intense debate the bill has generated as it passes through parliament. Only time will tell if the bill and the House of Lords amendment make the statute book. However, if it is enacted, it will be important that it is applied in a proportionate way to tackle the mischief it was designed to address.
There is a balance to be struck between protecting copyright to ensure the generation of new content and promoting free interaction as a basis for the digital economy. The government will need to continue to maintain this balance as and when the bill becomes law.
Helen Anderson is an associate at Denton Wilde Sapte