By Guest author

On 12 June 2015 a law came into effect requiring the providers of networks and electronic communication services in Romania to block access to gambling sites as well as sites advertising gambling activities that are unauthorised in the country. Internet Service Providers (ISPs) will now be obliged to implement a website blocking system and use it to filter the connections of all their customers.

In 2011, Government Decision no. 823/2011 raised, for the first time, the spectre of Internet blocking at the ISP level. In 2013, Government Decision no. 298/2013 established the National Office of Gambling (ONJN). This institution is, amongst other things, in charge of monitoring online gambling, and has the authority to force ISPs to abide by their rulings. At the beginning of 2014, ONJN started showing signs that it wants to use this authority to force ISPs to implement a website blocking system. Now a blacklist of websites to be blocked can be already found on the ONJN website.

The European Union included in the common regulatory framework for electronic communications networks and services directive the obligation for Member States not to block or abusively restrict the access to the Internet. Article 1(3a) of Directive 2002/21/EC explicitly states that “measures taken by Member States regarding end-users access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.”

The fundamental problem of blocking measures at the ISP level is that they can be considered as a type of censorship of online content, which raises serious concerns on human rights issues, freedom of speech in particular. Web content is unanimously recognised as a type of mass media, and censoring it is against the Romanian Constitution which states in Article 30(2) that “any censorship shall be prohibited” and 30(4) “no publication shall be suppressed”.

From a technical standpoint, there are numerous documented cases worldwide where, depending on the blocking method being used, Internet blocking lead to overblocking that affected legal websites which happened to share an IP address with a blocked website, or instances where websites (such as Wikipedia or Instagram) were blocked in their entirety just because one piece of offending content. The new legislation is not only about the creation of a blacklist containing the unauthorised websites communicated to the ISPs, but also about identifying websites which show advertisements or other marketing or promotional activities that offer links to online gambling sites. There is a real danger of arbitrary decisions enabled by the interpretation of the text of the law: Is a Facebook page a web page? Is a YouTube video a means of promotion? How about a Trilulilu.ro video? If Google.ro presents search results which promote unauthorised gambling sites, will it be blocked? How about Google.com?

Furthermore, the implementation of such a website blocking system means that the tools for Internet censorship will be created and deployed. It would be extremely easy to modify these tools, at a later date, to expand the censorship measures to other subjects. Once the principle is accepted and the technical infrastructure implemented, there is the danger of it snowballing from just illegal/unauthorised gambling into other fields.

For example, the Internet blocking system set up in Italy was initially implemented to restrict access to online gambling. Despite the initial intentions, this has led to websites being blocked in the country for multiple reasons, by multiple institutions. What was a simple blacklist of unauthorised gambling sites in 2006 has grown into a complex list of sites to be blocked, also including sites that have nothing to do with gambling. Unfortunately, Italy is not a unique case. Another similar example is France, which followed a similar path starting from blocking online gambling, just as Italy.

As EDRi has stated in its booklet on Internet blocking, crimes must be punished, not hidden. This should be done with respect to the rule of law, which implies that private companies like ISPs should not be in charge of enforcing these kinds of mechanisms which might lead to restriction of fundamental rights without been proven to be effective, proportional nor necessary. Equally important, we need real action and not cosmetic actions against crimes.

Government Decision no. 823/2011 regarding the modification and completion of Government Decision no. 870/2009 concerning the approval of the methodological norms of Government Emergency Order no. 77/2009 on the organisation and running of gambling operations (only in Romanian, 30.03.2011)
http://www.apti.ro/HG-norme-jocuri-de-noroc

Internet censorship measures coming from ONJN (only in Romanian, 04.02.2014)
http://apti.ro/masuri-de-cenzura-a-Internetului-din-partea-ONJN

The blacklist of sites running unauthorised gambling activities (only in Romanian)
http://www.onjn.gov.ro/home/lista-neagra

EDRi paper: Internet Blocking
https://edri.org/files/blocking_booklet.pdf

(Contribution by Matei Vasile, EDRi member ApTI, Romania)

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