The (legal) case against an Irish SOPA

The publicity and success of the anti-SOPA campaign in the US has put internet blocking on the agenda worldwide and Paul Quigley's excellent column in the Journal explains how Ireland is moving towards similar types of blocking - only by the stroke of a Ministerial pen and without any legislation by the Oireachtas. There are any number of reasons to oppose this Irish version of SOPA, and I'll blog about some of them later, but for the moment I want to highlight just one: that it is likely that such a law would be ultra vires the Minister and in breach of the European Convention on Human Rights.

I've previously made this case in a letter on behalf of Digital Rights Ireland in relation to the Department's draft statutory instrument:


In addition, the Irish telecoms group ALTO made similar points in their submission which we supported:
It's now six months since we made those submissions. In the meantime the European Court of Justice handed down its landmark judgment in Sabam v. Scarlet where it held that:

the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights...in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

Specifically, it held that filtering systems were prone to infringe the right to freedom of expression and held against one such system on the basis that it:

could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

In light of this judgment the case against blocking is all the stronger, making the Department's proposed law all the shakier. The music industry appears to realise this, which may account for its crude attempt to force the Department's hand by demanding that the taxpayer compensate it for its (supposedly) lost sales. Nevertheless, it's not too late for the Irish government to see sense and abandon this proposal and if you agree then you should let your TDs know what you think of it.