Legality of Voluntary ‘Pirate’ Site Blocking Regime Under Fire

Following the mass blocking of more than 50 alleged pirate sites in Portugal this week, lawyers are questioning the legality of the action. Since the mechanism to bar the sites is through voluntary participation and not sanctioned by any court, there are fears that without legal oversight copyright holders will abuse the process to serve their own aims.

In September 2013, a coalition of Portuguese copyright trade groups announced they would file for an injunction to prevent ISPs from providing access to The Pirate Bay. They argued it would not pose a problem, since ISPs already filter to prevent access to criminal content such as abusive images.

It took more than 18 months for the Association for Copyright Management, Producers and Publishers (GEDIPE) to get its way but eventually the Intellectual Property Court gave ISPs Vodafone!, MEO and NOS just 30 days to block The Pirate Bay.

While GEDIPE had its victory, the battle was still not won. Each time the group needed a site blocked in future it would have to take ISPs to court, an expensive and time-consuming process. Warning that it would do so if necessary, GEDIPE advised ISPs to enter into discussions to form a voluntary site-blocking mechanism instead.

“It is time to sit down and negotiate blocking measures that don’t require the courts to get involved,” GEDIPE boss Paulo Santos said.

ISPs initially objected to the idea saying that legitimate content could become blocked without legal oversight. Nevertheless, by this summer they were singing a very different tune.

In July the Ministry of Culture announced the signing of a memorandum of understanding between its own General Inspection of Cultural Activities (IGAC), the Portuguese Association of Telecommunication Operators (APRITEL), various rightsholder groups, the body responsible for administering Portugal’s .PT domain and representatives from the advertising industry.

The agreement would see local anti-piracy group MAPINET filing copyright complaints with the Ministry of Culture which in turn would conduct an assessment and then order ISPs to block sites. Importantly, no expensive courtroom argument would take place and no legal judgments would be handed down.

This week the agreement began to bite when 51 domain names connected to sites including KickassTorrents (Kat.cr), ExtraTorrent, Isohunt, YTS and RARBG were ordered to be blocked. However, there are now concerns over the legality of the process.

Speaking with the Economic Daily, intellectual property law expert Leonor Chastre, a partner at the Cuatrecasas, Gonçalves Pereira lawfirm, says he has doubts over the agreement and the actions taken under it.

“There are a number of entities that have signed the memorandum but it does not legitimize the role of the two main entities [the government and MAPINET] so they will not be able to determine what is legal and illegal in this field. The latter is a private entity, susceptible to external influences. What is the representativeness of that association and what is its intention?” he questions.

The argument that only a court is able to decide on the legality of a site is a common one that has played out in countries across Europe. Prolonged legal battles on that very topic have taken place in the Netherlands, Austria and currently Sweden, to name a few, so concerns that Portuguese authorities might be overstepping the mark are hardly a surprise.

Interestingly, MAPINET has a rather different perspective. The anti-piracy group says that laws already exist in the EU for blocking content when it’s deemed to be infringing copyright.

“The implementation of the E-Commerce Directive already includes procedures for removing illegal content,” MAPINET’s Miguel Carretas argues, adding that the purpose of the memorandum is to “regulate the application” of this legal provision.

“[ISPs] already had the power to block access to sites where illegitimacy is demonstrated,” Carretas says.

In response, Vodafone says that it “acts in accordance with the provisions of the law and the Memorandum of Understanding.” Other ISPs, MEO and Cabovisão, declined to comment.

The question now is how these concerns will develop. The most logical route for an intervention is for a site subjected to blocking to take the matter to court. That would be an expensive affair though and could involve challenging not only the government but also copyright holders and ISPs.

Nevertheless, a challenge is not without precedent. In 2013 Rapidgator was blocked in Italy following a broad crackdown on copyright infringement. The company hired local counsel to object and eventually won its case.