Last week’s landmark ruling compelling a Swedish ISP to block The Pirate Bay won’t spread quickly, despite copyright holders’ wishes. Telecoms giant Telia says that the ruling does not apply to them, so connectivity to the site will continue unless a court orders otherwise. Copyright holders are assessing their options.
Torrentfreak » “We Won’t Block Pirate Bay,” Swedish Telecoms Giant Says »
Poorly crafted court orders threaten the open Internet, Cloudflare says. (…)
“This is part of the danger you get into when you start to censor the Internet or you get orders to pull things down,” Kramer said. “It may not be so easy to limit access to a specific domain,” or to make sure a block applies only in a certain country.
Ars Technica: A court order blocked pirate sites that weren’t supposed to be blocked »
TorrentFreak: Cloudflare Puts Pirate Sites on New IP Addresses, Avoids Cogent Blockade »
A central principle in EU Internet-related legislation is the so-called mere conduit rule.
Under the mere conduit principle of the EU E-Commerce Regulations of 2002,[1] network operators have no legal liability for the consequences of traffic delivered via their networks.
Who an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
Today’s Swedish court ruling (and earlier European court rulings) to block The Pirate Bay is in direct conflict with this principle, as stated in the EU eCommerce directive.
The grounds for this seems to be the EU InfoSoc directive. The argument is that mere conduit does not apply when it concerns traffic to sites that do not adhere to notifications to remove content that is deemed illegal, e.g. when it comes to copyright infringements and intellectual property.
But this doesn’t make sense.
You cannot have a rule stating that ISP:s have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISP:s do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the eCommerce directive.
And even though the ISP in question have not been charged with any criminal offense – it is to be considered liable, as the verdict states that it will have to pay a hefty fine unless blocking The Pirate Bay. (The ISP also had to pay the copyright owners legal fees.)
I would say that we have a clear case of conflicting laws. And as the blocking verdict is only an interpretation of the InfoSoc directive, while the eCommerce directive states a very clear principle – the latter shall apply.
But I´m no lawyer. Reactions, opinions, and feedback are welcome in the comments below.
/ HAX
A Swedish appeals court (the court for market and patent related issues) today ruled that the Internet service provider Bredbandsbolaget must block the Pirate Bay and the streaming service Swefilmer.
By definition, this is censorship.
Also, it is a ruling in direct conflict with the EU the eCommerce-directives principle of »mere conduit« stating that net operators can not be held liable for what users are doing in their cables.
However, this is in line with court rulings in other European countries. And the court claims that the decision is based on EU law.
To confuse things further, the ISP has not been subject to any criminal charges or accusations of illegal activities. Nevertheless, the court seems to refer to a general »responsibilty« to stem illegal activities.
Where all of this leave the »mere conduit« principle (in the EU eCommerce directive) is unclear. Apparently, there are two conflicting sets of rules.
To abolish »mere conduit« is like holding the Post Office responsible for what is written and sent by mail. Or to hold road operators responsible for the intentions and actions of people traveling in cars using their infrastructure.
This is not reasonable. The ruling will open up for more censorship and surveillance.
And to top things of, no matter what, this form of blocking is not very effective and quite easy to circumvent.
/ HAX
Torrentfreak: The Pirate Bay Must Be Blocked in Sweden, Court of Appeal Rules »
Techcrunch: Twitter rolls out changes to silence abuse on its service »
BBC: Twitter rolls out new anti-abuse tools »
The Next Web: Twitter is rolling out three new ways to manage abusive tweets and users »
Many people fear the new U.S. president, Donald Trump. They might be right. Or not. But I think that we might oversimplify this issue.
Yes, Mr. Trump has the image of a despot. But it might be dangerous to judge a book by its’ cover. Not that we should »underestimate« Trump – but because it might lead to a false sense of security in other cases.
Presidents Bush and Obama were the ones expanding the Surveillance State that has now been handed over to the new administration. Their responsibility is immense. And the way they themselves used mass surveillance justifies very strong criticism.
In Europe, democratically elected leaders are rolling out the most massive mass surveillance regime in history. May in the UK, the »Großkolaition« in Germany and the French – they are all creating tools that can very easily be used to oppress the people. This even goes for countries with strong(ish) democratic and human rights credentials, like Sweden.
The EU is setting up the first major system for selective censorship of the Internet. And it’s being done outside the democratic process and institutions, outside the rule of law.
There is every reason to closely watch what the new U.S. administration is up to. But there are equally strong reasons to watch what is going on in the rest of the western world, under the cloak of parliamentary democracy.
It’s not just about what first meets the eye, but what is being done.
/ HAX
Blocking a website is like trying to stop lots of trucks from delivering a banned book; it requires an infrastructure of technical tools (things like China’s “Great Firewall”), and enterprising users can often find a way around it. Banning an app from an app store, by contrast, is like shutting down the printing press before the book is ever published. If the app isn’t in a country’s app store, it effectively doesn’t exist. The censorship is nearly total and inescapable.
NYT » Clearing Out the App Stores: Government Censorship Made Easier »
Apple, complying with what it said was a request from Chinese authorities, removed news apps created by The New York Times from its app store in China late last month.
The move limits access to one of the few remaining channels for readers in mainland China to read The Times without resorting to special software. The government began blocking The Times’s websites in 2012, after a series of articles on the wealth amassed by the family of Wen Jiabao, who was then prime minister, but it had struggled in recent months to prevent readers from using the Chinese-language app.
NYT: Apple Removes New York Times Apps From Its Store in China »
Pitruzzella, head of the Italian competition body since 2011, said “EU countries should set up independent bodies — co-ordinated by Brussels and modeled on the system of antitrust agencies — which could quickly label fake news, remove it from circulation and impose fines if necessary.”
Zerohedge: Italy Urges Europe To Begin Censoring Free Speech On The Internet »
Everybody seems to be obsessed with the phenomenon of »fake news«.
But this is nothing new. If you have first-hand information, you will find that mainstream media are often wrong.
When I used to work in the European Parliament for the Swedish Pirate Party, we established the principle »right enough«. If a piece of news only had minor errors, we let go and focused on something more important. To try to correct everything journalists get wrong will be much too time-consuming.
A standard phone call from a (non-Brussels based) journalist normally started out with everything between five and 30 minutes of EU for dummies – where we had to explain who does what and how things actually work in this multinational bureaucracy. And in the end, it would to some extent end up incorrect anyway. You can only do so much.
Journalists are not rocket scientists, their insights and knowledge are normally limited, and they have a tight time frame to collect and analyze the facts. They will always get some things wrong.
And, of course, journalists and media organizations are biased – often without being aware of this fact themselves.
However, the context at the moment is not about mainstream media. It’s about the competition.
The political and media elite seems to have a strong aversion towards alternative media. Often new players don’t follow the same set of unwritten rules as journalists who are a part of the establishment. And this might be a good thing, as the latter often are more interested in cultivating their relations with people in power than reporting the actual news.
Of course, alternative media is sometimes filled with fake news, satire, propaganda, opinions, biased reporting… and often with real, important news and a qualified analysis that doesn’t make it into traditional media.
During the years 2009-14 in the European Parliament, we often used our blogs and social media networks to get the news out: Important news and first-hand information, that was not in any way covered in other media.
This was often met with irritation from the political elite and the bureaucracy – and with a scornful attitude from Big Media. There are always people who, because of various reasons, find frank reports about real matters disturbing.
Somehow, I fear that an elite of politicians, bureaucrats, journalists, and media organizations are taking advantage of the fact that there is a certain degree of fake news out there – to smear all new, alternative media.
They simply don’t want others to interfere.
Now we will see Facebook in cooperation with mainstream media start labeling links as »disputed«. Germany might go all Putin and fine those who publish »incorrect« information on the Internet. It is all quite Orwellian. And it opens up for abuse, censorship, and cover-ups.
The media – new or old – rarely gets everything right. Sometimes it gets most things wrong. Usually, it has some sort of agenda. Therefore, its’ analyses should always be questioned. To get a somewhat complete picture – we need to turn to more sources, many different media organizations, and an abundance of disparate voices – not fewer.
The entire discussion over »fake news« might just be tactics in the endless war of power over information, over the agenda. Obviously, the establishment is not amused with the new competition.
/ HAX
