Why Is The UK Blocking Access To Sites Without Any Hearings?

from the extremely-questionable dept

Fri, Mar 1st 2013 6:38pm — Mike Masnick

We already wrote about the UK court letting the BPI decide what sites the court would order all UK ISPs to block access to, but as more details come out about the process, the scarier it is. As Duke noted in our comments, the whole process lacked any sort of due process:

For those interested the full judgment is here: EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 379 (Ch)

The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.

That's not justice - not in an adversarial court system.

The Open Rights Group (ORG) in the UK has quite reasonably expressed its concern about how such blockades are likely to stifle speech, especially when there is no one allowed to argue against the blocking.

We are concerned that these orders are not protecting speech, are overblocking forums and discussion, and are prone to error as the actual block lists are private.

Furthermore, users and the public interest have not been represented in the processes

It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented. The opportunity for widespread abuse and the stifling of free expression is massive.

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Filed Under: blocking, censorship, due process, file sharing, hearings, uk

56 Comments

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Anonymous Coward, 1 Mar 2013 @ 6:43pm

"Guilty!"
"But you haven't even heard my statements yet."
"I said 'Guilty!' Case closed. Send in the next infringer."
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- RD, 1 Mar 2013 @ 7:54pm
  
  Re:
  "Guilty!"
  "But you haven't even heard my statements yet."
  "I said 'Guilty!' Case closed. Send in the next infringer."
  
  This *should* be flagged as funny, but since it basically represents actual reality, I'm giving it the correct "insightful" vote.
  [ link to this | view in chronology ]
- Anonymous Coward, 2 Mar 2013 @ 6:53am
  
  Re:
  Our chief weapon is surprise...surprise and fear...fear and surprise
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2013 @ 9:23am
    
    Re: Re:
    That's both surprising and frightening.
    [ link to this | view in chronology ]
  - Lurk-a-lot (profile), 4 Mar 2013 @ 4:29am
    
    Re: Re:
    Our *three* weapons are fear, surprise, and ruthless efficiency...and an almost fanatical devotion to the Pope.... Our *four*...no... *Amongst* our weapons.... Amongst our weaponry...are such elements as fear, surprise.... I'll come in again.
    [ link to this | view in chronology ]
Anonymous Coward, 1 Mar 2013 @ 6:50pm

Adversarial hearings are only for those who can pay for it.
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Anonymous Coward, 1 Mar 2013 @ 6:54pm

First we lop off their head.
Then we find them guilty.
Followed by the trial.
After which the evidence of their guilt is presented; all other evidence is declared invalid.

But, you say why have the trial since you have already loped their head?

Simple, we can not lop the head of an innocent person so we hold the trial to find them guilty. That way we never lop the head of an innocent person.
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- Anonymous Coward, 2 Mar 2013 @ 6:57am
  
  Re:
  If she weighs the same as a duck...she's made of wood
  [ link to this | view in chronology ]
  - Not an Electronic Rodent (profile), 2 Mar 2013 @ 12:39pm
    
    Re: Re:
    and is therefore... A PIRATE.. uh.. witch!
    [ link to this | view in chronology ]
Anonymous Coward, 1 Mar 2013 @ 7:00pm

Who was due "due process"? The ISPs? They were represented by counsel, but chose not to attend the hearing because the issues before the court were of no concern to them. The websites? They are located in foreign countries and almost certainly have no wish to submit to personal jurisdiction before the UK courts.

As for the block order, the plaintiff's were required to present evidence, and the judge was required to consider the request using a broad standard before he could even issue an order. This hardly sounds like "[the] UK court letting the BPI decide what sites the court would order all UK ISPs to block access to"
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- Anonymous Coward, 1 Mar 2013 @ 7:17pm
  
  Re:
  "The websites? They are located in foreign countries and almost certainly have no wish to submit to personal jurisdiction before the UK courts."
  
  But you still have to at least invite them. If you notify all the involved parties and nobody shows up or files a motion, fine... but is that truly that what happened here?
  [ link to this | view in chronology ]
  - Anonymous Coward, 1 Mar 2013 @ 7:59pm
    
    Re: Re:
    From the judgement:
    
    "I have considered the applications on paper. I have already informed the Claimants that I did not require them to try to serve the applications on the operators of the Websites. My reasons for so directing are the same as those I gave with regard to the operators of TPB in Dramatico v Sky at [10]-[13]. So far as the third reason is concerned, the evidence on these applications satisfies me that it would be equally impracticable and pointless to try to serve the operators of the Websites."
    
    Nope. The judge simply declared that it was pointless to even TRY to serve the websites.
    
    But perhaps here's why:
    
    "i) IFPI investigations into KAT indicate that the website's operators have changed its domain registrant details repeatedly over the last five years, shifting the relevant addresses between France, Lithuania, Serbia, Spain, Ukraine and the United States in that time. The most recent domain registrant has an address in Belgrade. When further investigated, those details have also been found to include false addresses and aliases. Likewise, the website appears to have repeatedly shifted between different service providers, and in the past three years has moved between various ISPs in France, Germany, Luxembourg, Poland, Romania, Spain, Sweden and Ukraine."
    
    I do think they should have made the effort to try again, for due process reasons, but I no longer think it would have made a difference.
    [ link to this | view in chronology ]
    - Anonymous Coward, 1 Mar 2013 @ 9:02pm
      
      Re: Re: Re:
      Quote:
      I do think they should have made the effort to try again, for due process reasons, but I no longer think it would have made a difference.
      
      I hope that not many share that simple view, it is worth it to follow proper procedure and safeguard ALL protections against abuse, going through shortcuts is the easiest way to fall prey to bad people.
      
      Just look at what kind of people IP laws have been promoting lately.
      
      Patent trolls, free speech censorship, copyright trolls that are using the tools given to protect something to abuse it and they do it with impunity, just look at how Youtube is being abused by people who don't even hold the rights to any of those works yet still go around claiming they own everything, that is clearly abusive behavior, that is what no safeguards means, it means people can start abusing the system.
      [ link to this | view in chronology ]
      - Anonymous Coward, 2 Mar 2013 @ 9:38pm
        
        Re: Re: Re: Re:
        Hardly a "simple view". It is a fact that many people do everything in their power to avoid process servers. Sites such as the ones here have a very strong motivation to do so, and have done so repeatedly. How many times should process servers try to do so in order to meet your notion of "due process"?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Mar 2013 @ 4:57am
        
        Re: Re: Re: Re: Re:
        In this case, it was not tried even once.
        [ link to this | view in chronology ]
    - Anonymous Coward, 1 Mar 2013 @ 9:04pm
      
      Re: Re: Re:
      It is difficult to "serve" a party who constantly moves around and does its level best to avoid being found (including the names of its principals.
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      - Another AC, 2 Mar 2013 @ 6:27am
        
        Re: Re: Re: Re:
        So you say it 'hardly sounds like the court letting BPI solely decide who to censor', then you went on to describe how it came about that the BPI is the only party deciding who to censor... right.
        
        It is just as likely that the sites keep moving to stay online, it probably has nothing to do with not wanting to be found (that is your opinion). The judge seemed to assume these new sites were doing that too, but it's interesting that no one bothered to check this and instead just assume.
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        Anonymous Coward, 2 Mar 2013 @ 9:02am
        
        Re: Re: Re: Re: Re:
        The judge did "check it out" based upon evidence before the court.
        [ link to this | view in chronology ]
        
        Another AC, 4 Mar 2013 @ 6:34am
        
        Re: Re: Re: Re: Re: Re:
        Which came solely from BPI.
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      - Milton Freewater, 2 Mar 2013 @ 11:09am
        
        Re: Re: Re: Re:
        "It is difficult to "serve" a party who constantly moves around and does its level best to avoid being found (including the names of its principals."
        
        True, but it is a very bad idea to suspend basic legal rights just because someone is in hiding.
        
        The next case won't involve hiding because of infringement accusations. It will be much more serious.
        [ link to this | view in chronology ]
        
        Niall (profile), 4 Mar 2013 @ 5:41am
        
        Re: Re: Re: Re: Re:
        Yes, watch out when someone realises they can use that legal 'principle' on Julian Assange...
        [ link to this | view in chronology ]
    - Adrian Lopez, 1 Mar 2013 @ 9:41pm
      
      Re: Re: Re:
      Nope. The judge simply declared that it was pointless to even TRY to serve the websites.
      
      The judge shouldn't even be seeing the case. Leave content blocking to the Chinese. The Internet should be dumb pipes.
      [ link to this | view in chronology ]
    - Richard (profile), 2 Mar 2013 @ 1:18am
      
      Re: Re: Re:
      IFPI investigations into KAT indicate that the website's operators have changed its domain registrant details repeatedly over the last five years, shifting the relevant addresses between France, Lithuania, Serbia, Spain, Ukraine and the United States in that time. The most recent domain registrant has an address in Belgrade. When further investigated, those details have also been found to include false addresses and aliases. Likewise, the website appears to have repeatedly shifted between different service providers, and in the past three years has moved between various ISPs in France, Germany, Luxembourg, Poland, Romania, Spain, Sweden and Ukraine."
      
      and they will also change the URLs and IP addresses - rendering the blocking pointless.
      [ link to this | view in chronology ]
    - Milton Freewater, 2 Mar 2013 @ 11:06am
      
      Re: Re: Re:
      "I do think they should have made the effort to try again, for due process reasons"
      
      Exactly.
      
      If you believe you can chooses to suspend due process whenever you decide it "makes a difference," you are not operating a fair, just system.
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  - Duke (profile), 2 Mar 2013 @ 8:09am
    
    Re: Re:
    The problem with inviting them is that they're not actually parties.
    
    Due to the way this law was written (iirc it comes from the WIPO Copyright Treaty), the claimants can be anyone (but tend to be big copyright owner groups), the defendants are the ISPs - not the site operators.
    
    As to why the site operators weren't enjoined, the judge discussed this in the TPB case (relevant part here). Basically; 1) The law doesn't require that they be there, 2) it would be impractical to do so (to find who they are, where they are, etc.) and 3) they probably wouldn't be interested in defending the cases even if they were.
    
    Personally, I don't find those convincing reasons not to try, but then I'm not a High Court judge.
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- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 1 Mar 2013 @ 7:24pm
  
  Re:
  Mike doesn't do substantive discussion on the merits. Just drink your Kool-Aid.
  [ link to this | view in chronology ]
  - Anonymous Coward, 1 Mar 2013 @ 9:03pm
    
    Re: Re:
    Why debate the obvious?
    
    It is obviously wrong to do away with the very thing that protects as all.
    [ link to this | view in chronology ]
  - PaulT (profile), 2 Mar 2013 @ 6:14am
    
    Re: Re:
    Nor do you, moron, even though you decide to come to the very forum that would allow you to do so.
    [ link to this | view in chronology ]
- Anonymous Coward, 2 Mar 2013 @ 1:25am
  
  Re:
  are you some sort of total fucking moron? if the bodies representing the public are not allowed to say anything or give evidence, how is it a trial? if only one side of an argument is heard, how can an objective opinion be reached? this was done in the way it was because the BPI is too friendly with the govt, just like in the USA. had the USA not started all this crap in the first place, other countries would not be doing the same. it's exactly the same course that ICE takes!
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Mar 2013 @ 7:03am
    
    Re: Re:
    Kangaroo Court
    
    http://tvtropes.org/pmwiki/pmwiki.php/Main/KangarooCourt
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- Anonymous Coward, 2 Mar 2013 @ 10:58am
  
  Re:
  "The websites? They are located in foreign countries"
  
  The judgment limits blocking to only foreign sites? Where did you read that?
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Mar 2013 @ 9:41pm
    
    Re: Re:
    No, the sites here happen to be in foreign countries.
    [ link to this | view in chronology ]
Adrian Lopez, 1 Mar 2013 @ 7:00pm

Freedom of speech and due process
"It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented."

1. I hope "adversarial hearing" means a full and proper trial, with the requisite burden of proof, rules of evidence and procedure. Any lesser standard is unacceptable.

2. Governments should not have the power to suppress the flow online traffic. As long as a website is legal wherever it's being hosted, it should be visible everywhere. Dumb pipes, that's all.

3. Suppressing content without due process is the new normal. Governments and corporations around the world have decided that respecting the rights of those accused makes fighting copyright infringement too much of a hassle. It started with the DMCA and got worse from there. It may yet get even worse.
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- Anonymous Coward, 2 Mar 2013 @ 3:40am
  
  Re: Freedom of speech and due process
  Now taking bets that within that order are a few sites criticising the current party in power (Conservatives) and David Cameron and George Osborne's complete failure at handling the economy. (Not to mention the volume of cash that good ol' Dave has siphoned out of the country during his time as leader....)
  
  Why else would there be a "secret" list so we can't see exactly what they've blocked?
  [ link to this | view in chronology ]
- Anonymous Coward, 2 Mar 2013 @ 9:55am
  
  Re: Freedom of speech and due process
  
  You mean like how medical marijuana is legal in some states and it is legal to mail it to states where it's not? The postal service is dumb pipes, right?
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Mar 2013 @ 10:55am
    
    Re: Re: Freedom of speech and due process
    The internet is not a big truck.
    - Ted Stevens, rip
    
    Does the USPTO have financial interest in companies which would benefit from selective delivery? ie: slower delivery (or none at all) of mail items depending upon who the sender is.
    
    Is there more competition in the delivery to residence market than there is in the ISP market?
    
    The postal service is a government run service and therefore subject to rules and regulations levied upon it.
    
    ISPs are private business subject to the rules and regulations of ... the FCC I guess, although that is rather meaningless at the moment because there does not seem to any rules that they follow.
    
    The analogy is horrible - and it did not include an automobile.
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Anonymous Coward, 1 Mar 2013 @ 7:47pm

C Blockers
Quit [court] blocking. It's starting to get worse than a fat, drunk, jealous friend.
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Anonymous Coward, 1 Mar 2013 @ 10:21pm

So much for the anti-porn system being used only for porn. It seems it's irresistible to them not to use it for something else, too. If they already have a censorship system in place, why not, right?!
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- Anonymous Coward, 1 Mar 2013 @ 11:24pm
  
  Re:
  Uh, theres no porn filter. It was rejected by the government.
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Mar 2013 @ 12:40am
    
    Re: Re:
    There is a CHILD porn filter based on a list maintained by the Internet Watch Foundation. This court ruling, however, is an entirely separate issue and it is not helpful to conflate the two.
    [ link to this | view in chronology ]
    - Duke (profile), 2 Mar 2013 @ 11:29am
      
      Re: Re: Re:
      It is, however, based on the filters. In the first ruling, part of the reason the judge found that a side-wide block would be proportionate was that the ISPs already had in place systems for doing it, and all they would have to do was add a few extra URLs.
      [ link to this | view in chronology ]
Anonymous Coward, 2 Mar 2013 @ 3:42am

First they came for the porn. I said nothing because I'm not a pornographer. They they came for the anonymous trolls, and I said nothing because I thought that was a good thing (and I'm not an anonymous troll), then they came for Wikileaks, EFF and Amnesty International and I said nothing because there was no-one to say it to, and then they came for me.
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That Anonymous Coward (profile), 2 Mar 2013 @ 4:01am

Because a group given to exaggerations about their industries contributions to society, but seem to contribute to those in government who never raise questions about the validity of the claims, said they were bad people.

Intellectual property is our most valuable asset.
Its more important than human life.
Its more important than free speech.
Its more important than anything else.
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Anonymous Coward, 2 Mar 2013 @ 4:23am

Get over it! It's Britain. Socialism.
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- Anonymous Coward, 2 Mar 2013 @ 7:20am
  
  Re:
  Actually, their form of government is not socialism - but you knew that.
  
  Say No To Socialism
  http://www.dailykos.com/story/2010/03/25/850793/-BOTHERED-BY-PESKY-GOVERNMENT-PROGRAMS
  [ link to this | view in chronology ]
special-interesting (profile), 2 Mar 2013 @ 4:42am

Censorship is ugly in every form and its surprising that any such practice escapes democratic legal review. Due process, one of the foundation principles of a democratic society, is under attack.

This censorship way of thinking leads directly to the walled garden approach to a country's Internet accessibility. Evil prediction: each country will not allow foreign based opinions. (its inevitable in a time of war (on terror?))

As for censorship of porn or copyrighted material that never just happens. Its NEVER just about porn or 'the children'. Along with the porn a censoring body will include whatever controversial site requested by the ruling party. We are talking about, normal human nature, an irrevocable force.

Not quite off topic is my personal evaluation of whether a site is 'telling me the truth as they know it'.
Does your site allow cuss words like shit, fuck, asshole and the like? If they don't they are censoring the responses plus whatever else that pisses them off. Do you allow links to what some would consider disgustful photos? (sorry, wont be giving an example here) Same answer as above.

An easy measurement is if you allow (or delete like many manufacturer forum sites do) dissenting commentary. ANY site that prohibits free and uncensored speech is suspect. (some children sites excepted of which I expect to be locally enforced and not by some government agency list)

If this post makes it... thanks (again) Mike for providing an uncensored environment that evaluates the technological implications of our modern day environment.

The abuses of present copyright law is becoming legendary in that even the declared by the Library of Congress normal fair use items are still subject to take-down requests.

Adrian Lopez: you said almost everything.

Due process is hard and difficult to do in reality but this is why we hire professional attorneys and such. The expectation that these jobs be easy is beyond comprehension. (way, way, waaaaay beyond)

More importantly what percentage of the USA GDP (Gross Domestic Product) is lost to copyright madness?
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Anonymous Coward, 2 Mar 2013 @ 7:22am

Pirate -> the new witch
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- Anonymous Coward, 2 Mar 2013 @ 8:01am
  
  Re:
  No, it's worse - witches at least got documented trials in the open. 'Pirates' are lucky if they get to see the papers they are 'served' with.
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Mar 2013 @ 8:56am
    
    Re: Re:
    I would not consider what witches "got" to be a trial by any interpretation of the word.
    [ link to this | view in chronology ]
    - Anonymous Coward, 2 Mar 2013 @ 12:53pm
      
      Re: Re: Re:
      Having relative killed as part of witch trials, yeah, it was for more open than the bullshit we have today. And by legal standards, it was a trial in every sense of the word. Not that it would be now, but hey.
      [ link to this | view in chronology ]
Anonymous Coward, 2 Mar 2013 @ 9:29am

It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented.

You didn't think that it was reasonable to shut down a site with an adversarial hearing either.
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- Anonymous Coward, 2 Mar 2013 @ 11:02am
  
  Re:
  I'm missing the point here, is there one?
  [ link to this | view in chronology ]
Androgynous Cowherd, 2 Mar 2013 @ 2:00pm

Never thought I'd live to see the day...
...that England just threw the Magna Carta right out the window and went back to just letting people petition the king for special favors or for others to be punished, without those others getting any input into the matter or any representation.
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ByteMaster (profile), 3 Mar 2013 @ 8:25am

Religion
This whole thing is a bit like a MPAA/RIAA Religion (through the USTR mouthpiece), concocted in the "land of the free", and like usual, the new converts are even more fanatical and hard-line than the Original Believers. The UK can be lucky it's not as bad as Japan. Remember that video http://vimeo.com/45864549
Now imagine it in Japan with Japanese officers and a Japanese prosecutor, all to show the US how much of a "true believers" they are in IPR-Protection. These blocks are what the UK does to express their unquestioning Belief.
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- Anonymous Coward, 3 Mar 2013 @ 9:48am
  
  Re: Religion
  "land of the free"
  
  That "R" is a pirate noise, it must be removed
  
  land of the fee
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Anonymous Coward, 4 Mar 2013 @ 4:32am

If they "allow" people to argue the otherside, then they legitamize the otherside. They want to belitle the sharing community to manipulate the general public, sorry i mean "educate" the general public. They want to instill so fiercly that they are beyond right that we should assume, they are right, end of story.
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