Sunday, January 22, 2012

"Ireland's SOPA" will be vague and open-ended

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Adrian Weckler has a worrying piece on government proposals for blocking legislation in today's Sunday Business Post (paywalled). I've taken the liberty of extracting some of the highlights:
Is Ireland about to introduce a law that will allow music companies to order Internet service providers to block access to websites? I rang up the Minister of State at the department of Enterprise, Jobs and Innovation, Sean Sherlock, to find out. "The statutory instrument to be introduced is completely different to Sopa [Stop Online Piracy Act] in America" he told me. "We are simply addressing the High Court judgment handed down by Mr Justice Peter Charleton in relation to copyright law... I will introduce this imminently, by the end of January." That's a yes, then ...

The Irish governments new “statutory instrument” threatens to do some of the same things as Sopa, mainly introducing the power to force ISPs to block websites suspected of having copyrighted material on them.

While that means curtains for the Pirate Bay (which few people here will miss), it also leaves open the possibility for a judge to order ISPs to block YouTube, Facebook and Twitter.

Why? Because, with their billions of users, YouTube, Facebook and Twitter inherently find some copyright protected material leaked onto their web services. The new law will give music and movie firms the legal footing to get ISPs blocking. That may not go down too well with Google and Facebook, which are two of Dublin's biggest employers. It probably won't sit easily, either, with the IDA, which may have to alter its pitch to large US social media firms who may have been thinking of setting up in Ireland. (That includes Twitter.)

Given the seismic nature of the proposed change to Irish internet access, surely more detailed primary legislation would be in order here? For example, could there be a limit to enforcement of the injunctions? What defences might be available? Could there be exceptions?  "We will probably need a test case to come before the courts before primary legislation such as that could be considered," said Sherlock. In other words: don't look at us, guv. We may be the government, but this kind of law-making is really a matter for judges. We don't really do that kind of thing ...

Politically, this is a no-win scenario. Even with the government about to open the legal doors for the music and movie companies to start directing ISPs' access policies, the content creation industry is frothing and fuming. Ironically, by taking a leave-it-to-m'lud approach, the government is also now attracting the anger of an increasing tranche of the technology and digital community. It is unusual to alienate both sides of a legislative argument ...

So this really is turning out to be a lose-lose episode for the government. Yet the issue wields vast significance for both sides of the debate (the music industry and the digital technology industry). It could also have profound, long-lasting consequences for Irish industry.
The clear implication from that interview with Sean Sherlock is that the proposed measures will be lacking in any real detail, leaving it entirely up to the judges as to what types of blocking might emerge. (Possibly going beyond web blocking to also target hosting and other services.)

This ambiguity - as well as jeopardising fundamental rights - will create intolerable uncertainty for businesses such as Google who might find themselves at risk of business threatening and unpredictable injunctions and will certainly deter others from setting up in Ireland.

Instead, any action should only take place by primary legislation which the Oireachtas would have a chance to scrutinise and debate. As I said previously in a letter on behalf of Digital Rights Ireland:
It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be "democratically legitimised" (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation - rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.
Although it's the 11th hour, it's not too late for the Irish government to see sense and abandon this proposal. If you agree then you should let Sean Sherlock and your TDs what you think of it.


  1. Adrian,
    I think that cutting off Internet access will be seen in the not too distant future as just a civilised as cutting off the hand of a thief ! An excessive and cruel and unusual punishment. Access to the Internet will be seen as a fundamental civil right without which it would be impossible to conduct an ordinary decent life.
    So - let's work out how to punish the crime appropriately, and let's require due process.

    1. I think it will be seen as more like a driver's license, a privilege and not a right.

    2. Exactly. If the big bucks are complaining of not making enough denari...Then let them amend their ways and not have the whole world bow to their command!

  2. What about that EU ruling a couple months back?

  3. That decision relates primarily to p2p blocking via deep packet inspection. It (unfortunately!) isn't directly applicable to this type of measure which (presumably) would mostly focus on DNS & IP address blocking.

  4. This worries me as the government is trying to sneak through this legislation and ignoring all interaction with citizen concerns.
    Is the EUCJ the only way to test this?

    1. They haven't listened to us about the banks. Why would they start now?

  5. This following message is intended for any Irish citizens:

    If you want to protest, follow the American model:

    1.Get as many people as possible to phone our elected represetatives and ask them to oppose this legislation.
    2.Ask Google Ireland and Facebook Ireland etc to oppose this legislation
    3.Repeat step 1.

  6. Again a message to Irish citizens:
    Here's the link of the Irish politician who is overseeing the enforcement of this bill:

    His office phone number is on the page. If you want to protest the enforcement of this bill, phone his number which is to the right, under the 'Contact Us' section.

    Also, here's a list of all elected representatives in Ireland:

    If you're Irish and you care - get calling. P.S. I don't think an online petition would have as much impact as people actually ringing the TDs' offices.

  7. Have emailed and called his office, sent the same large email outlining the Pandora box he is about to open & the need for a free internet within Ireland.
    If everyone else who reads this could do the same, we may start making from inroads.
    I've asked everyone I know to contact their local TDs and the Minister.
    I've also contacted the main political parties in relation to this, ironically my email was rejected for "inappropriate content" by anyone with a address...
    I kept it polite, clean and did not include anything I know of that could trigger an obscenity filter...*shrug*.
    It was fine for the and addresses.

    1. Internet censorship has unintended consequences, threatens freedom of speech. Whodathunkit?

  8. this is not a good news not only in your country but this only means that the use of internet will more likely become privilege rather than a will. Dictatorship is coming its way.

  9. In all honesty, the only people who will actually care about this will all be under 35, this is Ireland, you can't even a straight answer out of our politicians let all alone get them to acknowledge you

    1. It's not just Ireland. It's the entire world. See what the police force is doing to Pinheirinho people in Brazil (google for it and you'll find tons of videos of police force abuse and the absurd that is this entire situation). It's about time for the people to wake up and control their own government, not the government to control the people.