In order to counter the spreading misinformation, we are providing a how-to with short explanations regarding different practical problems related to ACTA. This guide looks at the risks that ACTA creates for websites, particularly e-commerce sites.
To stay online, a website owner just needs to make sure that their site contains nothing which might cause any of the site’s service providers to fear that it contains an (intentional or unintentional) infringement of intellectual property rights. This could include information posted by third parties, such as user-generated content. As the Internet is global, the website owner needs to be confident that the material is above suspicion in the country where he or she is based, but also in the countries where the service providers are based and in the countries that are targets of its services. As copyright law varies widely, both within the EU and globally, particularly with regard to copyright exceptions, this is an almost impossible task.
We have therefore prepared the suggestions below that can be used in a post-ACTA world, in order to keep your website online. All of the following examples have happened but are somewhat exceptional. Under ACTA such examples will become commonplace:
1. When you set up your business, you have to buy a domain name. You can do so at a so-called domain registrar. You need to make sure that you do nothing that creates an incentive for the domain name reseller to remove your site. It has already happened that a Spanish company – its online business disappeared overnight because the American registry deleted the domain names. The crime? Providing travel services to Cuba – legal in Spain, illegal in the USA.
2. Each domain name is administered by a domain name registry, but sold to a (final) customer by a domain name registrar. So, to stay online, it is important to avoid doing anything which would risk unilateral measures being taken by the registrar. The registrar of the .COM and .NET domain names has already demanded the right to take ‘voluntary’ action by deleting web domains that it thinks are infringing the law.
3. The search engine that provides traffic to your website could remove your site from search results, based on the law of the country where it is based. This is already happening with Google, for instance, which is removing search results in Europe on the basis of non-judicial take-down requests made under US law (DMCA). Ironically, Google also takes voluntary measures to remove access to material that it fears is contrary to European law – although it continues to allow US consumers access to that material.
4. The payment service providers you are using might freeze your accounts and block your payments if they fear negative consequences as a result of your activities. Already, we have seen Visa, Mastercard and Paypal block payments to WikiLeaks, even though that organisation has never been charged with infringing any law.
5. The service or hosting providers may remove your website if they believe that any aspect of your site might be directly or indirectly breaking the law. Dutch NGO Bits of Freedom tested ten service and hosting providers by uploading an obviously legal text and then sending a complaint from a Hotmail account. Seven out of the ten ISPs removed the material without question – this is the “cooperation” model that will be anchored into international law by ACTA and promoted by a European Union that is, according to its treaties, based on the “rule of law”.
6. You should also be aware that it also would be possible for your payment provider to disclose some of your financial information, even commercially sensitive information, to “judicial authorities or to the right holder if you are considered to be an “alleged infringer” or merely “implicated”.
7. It is important to be careful with linking to content on other websites or in choosing advertisements displayed on your website. As the British government found out when it accidentally linked to a pornography website, no amount of diligence is enough to be certain that a link won’t end up being a problem.
8. Finally, if you rely on advertisements to make money, the advertising networks are increasingly being asked to take action by blocking payments to websites, so that source of revenue cannot be relied upon.