Some websites can be unlawful because they damage the private rights of individuals. The sites may be using (or providing access to) content such as music, film and videos without permission from the owners – thus infringing intellectual property rights. We don’t automatically block access to this content. We need evidence of people’s property rights before we block something. That’s why we helped establish a formal process where a court decides if access to a particular piece of content should be blocked.
Why don’t we automatically block access to this material?
We are strong believers in intellectual property rights. They help promote a vibrant creative sector in the economy. But we also believe that limiting the right to access content online should only be done with a clear legal mandate (unless the customer has requested or consented to limited access).
That’s why we refused to block the Newzbin2 site voluntarily when the copyright owners asked us to. Then in 2011 they brought court proceedings to compel us (but not other communications providers) to block the site. So we decided to bring a defence against the claim so that a court could consider the issues. It was the first case of its kind. We couldn’t be sure Newzbin2 was infringing copyright, and if so whether it was the whole site or only part. Nor could we be sure we needed proof that our customers were already accessing and downloading that material without permission before we blocked general access.
What was the result of the legal challenge?
Although we attracted criticism, we believe it was right for us to defend the claim. We wanted to be sure that the restriction on people’s access to the material was objectively justified and clear. We believed a court should decide what level of infringement meant that access to a site should be blocked. It was important to establish a process for any future similar requests from copyright owners.
As a result of that case, we know now that we don’t need to know about specific illegal acts by our customers before we can be forced to block access to these sites. It’s also clear that copyright owners should first seek alternative solutions before forcing us to block access to content.
Since the court made the position clear, we’ve been driving for an agreed process with copyright owners. For example, we insist that they make a court application, to protect our customers’ rights and our own position. However we do take a measured approach: if a court’s already decided that we must block access to a site, we don’t make copyright owners make another court application for each website address that is derived from it.
Does this process apply to other intellectual property rights?
We believe so, but the position is not yet fully clear. Cartier brought a court action in 2014 trying to extend the scope of the regime from copyright infringement to infringement of other types of intellectual property (like trademarks). We and other communications providers challenged it to get the court’s view on when to limit access to this type of material. Because of the lack of clarity in the court’s initial judgment, we have together brought an appeal, which is likely to come before a higher court in 2016.
Why do we take these issues to court?
We don’t take court action lightly. But when it comes to restricting people’s right to free expression it’s the right thing to do because it makes sure actions are proportionate and based on a clear legal framework.
It’s for this reason we went to court for clarity on the Digital Economy Act 2010 when it was brought into law.
The Act would potentially have made us restrict access to content and provide lists of our customers infringing copyright to copyright owners. Together with TalkTalk we needed to better understand the basis for this law. We needed to test whether it struck the right balance between privacy and competing property rights.
Whilst the case itself was unsuccessful, it prompted government to work with us, other communications providers and rights holders to implement an alternative scheme, Creative Content UK. We think this provides a better balance between the interests of copyright owners and customers, as well as helping educate people about online copyright infringement.
What happens if someone tries to access a site blocked by a court order?
If someone tries to access a blocked site, they get this message:
“Access to the websites listed on this page has been blocked pursuant to orders of the high court. More information can be found at www.ukispcourtorders.co.uk”.
How many sites are blocked in this way?
All the sites blocked by court order are listed at www.ukispcourtorders.co.uk.
We don’t routinely maintain data on the number of attempts to access these sites. We don’t think those statistics would reflect the number of people intentionally trying to access those sites. (For example, automated software running on customers’ machines might generate multiple access attempts.) Although we don’t routinely keep records of the number of attempts to access barred sites, we did look at the period between March and July 2015, and noted that the number of attempts to access these sites averaged 375,000 per 24 hrs.