For those who follow the issue of blocking illegal content on the Internet, there is an interesting development on this issue here in Germany, and I will tell you a bit about it.
One way to make it difficult to access illegal content is to block it directly in DNS. But what is DNS for? Basically, it is used to translate the domain name to the IP of the server that hosts the content. By blocking directly at the DNS level, a request to a domain will no longer bring the IP number of the server, and with that, the user no longer accesses this content.
However, there are several disadvantages of blocking content at the DNS level, such as the fact that the measures are easily bypassed and do not solve the problem, causing potential collateral damage (such as blocking legal documents); they can put users at risk (when users try to use alternative and non-standard approaches to reach content); they encourage the lack of transparency; they can lead to the setting up of âundergroundâ services (when content is moved to the Dark Web or when users access content via VPNs); they infringe on privacy (since many content blocking measures require the examination of user traffic); and they raise human rights and due process issues (such as issues of necessity, proportionality and freedom of expression).
Recently, the Bundesnetzagentur (which is the German telecommunications, postal services and energy agency) and the Bundeskartellamt (which is a competition protection authority) have declared themselves in favor of launching an initiative called Online Copyright Clearance System (CUII).
This authorization system is an initiative of the copyright industry to combat copyright and intellectual property violations. This initiative is voluntary and the participating associations represent the music, film, games and scientific publication sectors, as well as all major Internet service providers in Germany.
The aim of the initiative is to implement DNS blocking more efficiently and quickly to make it more difficult to access sites that infringe copyright. The basis for this is recent German case law, according to which right holders can, in certain circumstances, request Internet service providers to block access to sites that illegally make available their copyrighted works. .
And how does this Clearance system work? DNS blocking requests must first be examined by a committee of three people on the basis of the criteria of case law. Basically, the request will only be considered if it is clear that legal action against the provider of the illegal content has no chance of success.
If the decision is unanimous by blocking at DNS level, then the recommendation of this committee must be forwarded to the Bundesnetzagentur. The Bundesnetzagentur will analyze whether the recommendation can be implemented while respecting the aspect of net neutrality. If the agency expresses no concerns in an informal statement, German ISPs will block the respective domains in the DNS.
This measure raises concerns about human rights as well as the free market. First, DNS blocking is one of the most popular ways to build censorship infrastructure, and its use in democratic states normalizes this instrument, encouraging authoritarian governments to use Germany as a model for passing real censorship laws. in their countries. In addition, once control instruments are introduced, they are usually no longer withdrawn but extended to other scenarios, such as CSAM (child sexual abuse material).
Another important point concerns the compatibility with the rules of fair competition and antitrust since the agreement is made between ISPs and associations of the entertainment industry. In this context, the CUII can be seen as a privatized law enforcement body, and not as a tribunal or independent authority that decides which websites are classified as illegal. Ultimately CUII is occupied by competitors of these streaming portals claiming to share illegal copyrighted content which is a clear conflict of interest.
Since the start of the Clearance System operation in February 2021, the blocking of 6 portals has already been “judged”. It may not sound like so much, but this open precedent can be dangerous both in Germany and in other countries, especially when shrouded in an “aura” of legality and institutionalization, using case law as a basis and informally involving a government agency in part of the process.