Ex parte domain name seizures in Denmark
At the beginning of October, news media in Denmark reported about the seizure of the domain name raybansolbrillerudsalg.dk, which allegedly had been used for selling counterfeit products to Danish consumers. The Danish e-commerce Foundation, which administers the official Danish accreditation for safe online trading (the e-mark), has compiled a list of 1141 domains accused of selling counterfeit good to Danish consumers, and raybansolbrillerudsalg.dk is the first domain on that list to be seized by the Danish State Prosecutor for Serious Economic and International Crime (SØIK).
The domain name seizure was done in an ex parte proceeding against the Danish domain registry, DK Hostmaster, and was based on section 804(1) of the Danish Administration of Justice Act. DK Hostmaster did not provide any objections in the court case. An English translation of the court order is available at the seized domain.
Under section 804(1), a third party who is not suspected in the case, can be ordered by the court to hand over an object which could serve as evidence in a case subject to public prosecution. After considering screen dumps of the website, the court ruled that the domain name should be transferred to SØIK on grounds that the requested information may serve as evidence of copyright infringements (the design of Ray Ban sunglasses is protected by copyright).
The logic of the ruling is somewhat inconsistent. The domain name itself does not contain any evidence of copyright infringement, and by transferring the registration of the domain name to SØIK, the link to the website containing evidence of the infringement is effectively removed. This leaves SØIK with less evidence, as they now only have screen dumps rather than a domain name that routes to the actual website. Section 804(1) can also be used against a third party to ensure that a final confiscation order by the court can be enforced (assuming that the domain owner is convicted, and that confiscation of the domain is part of the punishment), but this is not mentioned in the court ruling. Moreover, a confiscation order can always be enforced since DK Hostmaster can transfer ownership of a domain at any time.
The real effect of the court order is that section 804(1) of the Administration of Justice Act is used to obtain a preliminary injunction against the website in an ex parte proceeding, where the owner of the domain cannot produce a defence. This clearly violates normal due process procedures. In this respect, the Danish court order is similar to the domain name seizures in the United States, where several hundred domains have been seized by federal authorities in ex parte proceedings.
The present case is not the first domain name seizure by SØIK in Denmark. There have been at least two previous cases, the first one in 2012, where a domain name was seized using the same legal procedure, namely the “evidence rule” in section 804(1) of the Administration of Justice Act. This list was compiled by searching for domains registered to SØIK at the Danish domain name registry. It is possible that more domains have been seized by SØIK and later deleted from the domain name registry.
Needless to say, the number of seized domains in Denmark may soon increase substantially if SØIK is going to apply the same legal procedure against all .dk domains on the list that SØIK has recently received from the Danish e-commerce Foundation.
Furthermore, the use of section 804(1) is not limited to cases of IPR infringement. A domain could potentially be seized ex parte in any case subject to public prosecution. In Denmark, for example insults against a person acting in a public office are subject to public prosecution (section 121 of the Danish Penal Code). Section 804(1) of the Administration of Justice Act could be ostensibly used to seize the domain as evidence of the insult, but in reality to obtain an ex parte injunction against the website containing the insult. Section 805 contains some limitations as the court would be required to consider whether its ruling under 804(1) is proportionate to the effect on freedom of speech, but in practice, there is no guarantee that this will be considered in an ex parte proceeding.
Danish police closes internet scam store after TV consumer program, Danish Broadcasting Corporation (only in Danish, 01.10.2014)
English translation of the court order for the domain seizure (transfer)
Website of DK Hostmaster, the Danish (.dk) domain name registry
ICE domain name seizures threaten due process and first amendment aights, ACLU (20.06.2012)
(Contribution by Jesper Lund, EDRi-member IT-Pol, Denmark)