As numerous Walled Culture posts attest, site blocking is in the vanguard of the actions by copyright companies against sites engaged in the unauthorised sharing of material. Over the past few months, this approach has become even more pervasive, and even more intrusive. For example, in France, the Internet infrastructure company Cloudflare was forced to geoblock more than 400 sports streaming domain names. More worryingly, leading VPN providers were ordered to block similar sites. This represents another attack on basic Internet infrastructure, something this blog has been warning about for years.
In Spain, LaLiga, the country’s top professional football league, has not only continued to block sites, it has even ignored attempts by the Vercel cloud computing service to prevent overblocking, whereby many other unrelated sites are knocked out too. As TorrentFreak reported:
the company [Vercel] set up an inbox which gave LaLiga direct access to its Site Reliability Engineering incident management system. This effectively meant that high priority requests could be processed swiftly, in line with LaLiga’s demands while avoiding collateral damage.
Despite Vercel’s attempts to give LaLiga the blocks it wanted without harming other users, the football league ignored the new management system, and continued to demand excessively wide blocks. As Walled Culture has noted, this is not some minor, fringe issue: overblocking could have serious social consequences. That’s something Cloudflare’s CEO underlined in the context of LaLiga’s actions. According to TorrentFreak, he warned:
It’s only a matter of time before a Spanish citizen can’t access a life-saving emergency resource because the rights holder in a football match refuses to send a limited request to block one resource versus a broad request to block a whole swath of the Internet.
In India, courts are granting even more powerful site blocks at the request of copyright companies. For example, the High Court in New Delhi has granted a new type of blocking order significantly called a “superlative injunction”. The same court has issued orders to five domain registrars to block a number of sites, and to do so globally – not just in India. In America, meanwhile, there are renewed efforts to bring in site blocking laws, amidst fears that these too could lead to harmful overblocking.
The pioneer of this kind of excessive site blocking is Italy, with its Piracy Shield system. As Walled Culture wrote recently, there are already moves to expand Piracy Shield that will make it worse in a number of ways. The overreach of Piracy Shield has prompted the Computer & Communications Industry Association (CCIA) to write to the European Commission, urging the latter to assess the legality of the Piracy Shield under EU law. And that, finally, is what the European Commission is beginning to do.
A couple of weeks ago, the Commission sent a letter to Antonio Tajani, Italy’s Minister of Foreign Affairs and International Cooperation. In it, the European Commission offered some comments on Italy’s notification of changes in its copyright law. These changes include “amendments in the Anti-Piracy Law that entrusted Agcom [the Italian Authority for Communications Guarantees] to implement the automated platform later called the “Piracy Shield”.” In the letter, the European Commission offers its thoughts on whether Piracy Shield complies with the Digital Services Act (DSA), one of the key pieces of legislation that regulates the online world in the EU. The Commission wrote:
The DSA does not provide a legal basis for the issuing of orders by national administrative or judicial authorities, nor does it regulate the enforcement of such orders. Any such orders, and their means of enforcement, are to be issued on the basis of the applicable Union law or national law in compliance with Union law
In other words, the Italian government cannot just vaguely invoke the DSA to justify Piracy Shield’s extended powers. The letter goes on:
The Commission would also like to emphasise that the effective tackling of illegal content must also take into due account the fundamental right to freedom of expression and information under the Charter of Fundamental Rights of the EU. As stated in Recital 39 of the DSA “[I]n that regard, the national judicial or administrative authority, which might be a law enforcement authority, issuing the order should balance the objective that the order seeks to achieve, in accordance with the legal basis enabling its issuance, with the rights and legitimate interests of all third parties that may be affected by the order, in particular their fundamental rights under the Charter”.
This is a crucial point in the context of overblocking. Shutting down access to thousands, sometimes millions of unrelated sites as the result of a poorly-targeted injunction, clearly fails to take into account “the rights and legitimate interests of all third parties that may be affected by the order”. The European Commission also has a withering comment on Piracy Shield’s limited redress mechanism for those blocked in error:
the notified draft envisages the possibility for the addressee of the order to lodge a complaint (“reclamo”) within 5 days from the notification of the order, while the order itself would have immediate effect. The Authority must then decide on these complaints within 10 days as laid down in Article 8-bis(4), 9-bis(7) and Article 10(9) of the notified draft. The Commission notes that there do not seem to be other measures available to the addressee of the order to help prevent eventual erroneous or excessive blocking of content. Furthermore, as also explained in the Reply, the technical specifications of the Piracy Shield envisage unblocking procedures limited to 24 hours from reporting in the event of an error. This limitation to 24 hours does not seem, in principle, to respond to any justified need and could lead to persisting erroneous blockings not being resolved.
The letter concludes by inviting “the Italian authorities to take into account the above comments in the final text of the notified draft and its implementation.” That “invitation” is, of course, a polite way of ordering the Italian government to fix the problems with Piracy Shield that the letter has just run through. They may be couched in diplomatic language, but the European Commission’s “comments” are in fact a serious slapdown to a bad law that seems not to be compliant with the DSA in several crucial respects. It will be interesting to see how the Italian authorities respond to this subtle but public reprimand.
Robin Edgar
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