In 2012, ACTA was rejected by the European Parliament with an overwhelming majority, not least due to its proposals to allow private law enforcement by foreign internet companies. Despite this, on 8 May 2015, the Danish Ministry of Culture presented a “Code of Conduct” agreement with a number of internet intermediaries, which in many respects is similar to the objective to “promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement” in Article 27(3) of the ACTA Treaty.
The participants of the agreement, officially called “Code of Conduct to promote lawful behaviour on the Internet”, are the Ministry of Culture, the Rights Alliance and other rightsholders, Internet Service Providers (ISPs), payment processors (Diners, MasterCard and Nets), advertising companies, web hosting companies, domain registrars, Google and Microsoft.
The new agreement builds on an earlier more limited code-of-conduct agreement from October 2014 between the Rights Alliance and the Danish ISPs. Under that agreement, when a Danish court order one ISP to block a specific website, the other ISPs in the Danish Telecom Industry Association will voluntarily block that website within seven working days (even if, due to the size or technologies used, this might not be necessary or proportionate and might not have been approved by a court). Moreover, if a blocked website appears on a new domain with the same content, the ISPs will, upon request from rightsholders, block that domain without a court order.
The participants of the new Code of Conduct will work together to ensure that consumers prioritise the Internet’s autorised services and options, while at the same time actively seeking to disrupt and stop illegal activities. The Code of Conduct agreement mentions that it complements activities taken on an international level.
Under the new Code of Conduct, an injunction against a specific ISP to block a specific domain name could be extended with voluntary blocking in other areas than Internet access services, for example advertising networks and payment processors. At a copyright enforcement seminar in Copenhagen on 28 May 2015, Maria Fredenslund of the Rights Alliance described the intention as “maximising the effect of an injunction”.
A working document (only available in Danish) describes the various projects of the Code of Conduct in greater detail. Three projects are referred to as “follow the money”, covering advertising, payment processors, as well as web hosting companies and domain registrars. The focus is on voluntary blocking of content and online advertising and on stopping payment flows.
Advertising networks will take “reasonable” steps to avoid supporting services and products based on copyright infringement when selling advertising space online. They will add terms to their contracts which can limit the flow of money to allegedly/suspected illegal services. Furthermore, advertising networks will aim at working solely with partners and subcontractors that commit to following the Code of Conduct. The working group for advertising will consider extending the restrictions to websites where no judge has ruled about its illegality, but the website can be considered to be “obviously” illegal.
Payment processors will investigate the possibility of blocking payments to allegedly illegal services. Web hosting companies and domain registrars will take “reasonable” steps to remove unauthorised services from their servers and refrain from doing business with such services. It is specifically mentioned that these voluntary steps are in addition to their legal obligations to remove content under the E-commerce Directive.
A second group of projects under the Code of Conduct agreement is supposed to guide the consumers towards legal services on the Internet. The measures aim for it to be the rule, not the exception, that the consumer is presented with and motivated to use authorised services. In order to meet this goal, there are plans to remove or lower the priority of allegedly anauthorised services in search results (links) from search engines and online popularity rankings. Google and Microsoft Bing will participate in this project. Of course, Google already does this, based on US law – if certain domains are the subject of a significant number of complaints under the US DMCA, they are demoted in Google search worldwide.
Internet Service Providers will continue their current practice of voluntary blocking once an injunction has been issued against a single ISP. The blocked websites (with DNS-blocking) will display a notice which encourages the consumer to search for legal alternative at a website called Share With Care (www.sharewithcare.dk).
Safeguarding citizens’ fundamental rights is mentioned nowhere in the documents published by the Danish Ministry of Culture. No civil society organisation has participated in the discussions about the Code of Conduct. The “broad support”, referred to by the Ministry of Culture when presenting the Code of Conduct agreement, is only within the established internet companies and intermediaries. Fundamental rights, jurisdiction, applicable law, rule of law, effectiveness, counterproductive effects, anti-competitive effects, etc have, as is usual in such circumstances, not been assessed, nor will they be.
Broad support for a common fight for a legal and safe internet in the copyright area (only in Danish, 08.05.2015)
Code of Conduct to promote lawful behaviour on the Internet, Danish Ministry of Culture (08.05.2015)
Denmark: Code of Conduct on website blocking, Kluwer Copyright Blog (24.10.2015)
EDRi-gram: Ex parte domain name seizures in Denmark (08.10.2014)
re:publica 2015 – States think we’re stupid: Internet censorship around Europe since ACTA
(Contribution by Jesper Lund, EDRi member IT-Pol, Denmark)