By Maryant Fernández Pérez

On 30 July 2015, copyright and related rights-holders associations, the General Inspection of Cultural Activities (IGAC), the Portuguese Consumer Directorate-General, the Portuguese Association of Telecom Operators, the organisation responsible for .pt domain registrations DNS.PT, the anti-“piracy” group MAPINET, advertising associations, and (unidentified) consumer associations agreed on a Memorandum of Understanding aimed at protecting copyright and related rights online.

This “self-regulatory” agreement, facilitated and promoted by the Portuguese government, is expected to enter into force around mid-August 2015. Although it has not been published, parts of its content have been reported by Portuguese news sites and the parties involved.

According to those sources, the agreement will allow the signatory copyright associations to notify MAPINET of websites that contain either a minimum of 500 works which allegedly infringe copyright and/or content providers’ rights, or sites that contain two-thirds allegedly infringing contents. MAPINET will be in charge of gathering the evidence submitted by the associations and will forward a maximum of two wide-ranging complaints to IGAC per month. IGAC then contacts Internet Service Providers (ISPs) to restrict access to the websites through “Domain Name System (DNS) blocking” within 15 working days. It is reported that the blocks expire after a year, unless IGAC determines otherwise. Additionally, the affected websites will be excluded from carrying advertisements.

While the Portuguese government claimed this agreement is a pioneering system in Europe, similar mechanisms already exist, for example in the United Kingdom. Besides their differences, both systems including “voluntary” agreements are detrimental to the right to a fair trial, presumption of innocence, freedom of communication and eventually free expression. As reported (and subject to further examination of the content of the agreement), this Memorandum of Understanding has no evidence that it might be effective, it falls outside the rule of law, has the power to violate human rights online without responsibility for the parties, and lacks transparency.

First, DNS blocking is not effective because it can be easily circumvented, even by accident. When you type to your browser the domain name of the website you want to access, your computer identifies the corresponding IP address. If your ISP blocks that domain address, your access to it will be restricted. However, all that is required to circumvent it is the use of alternative and freely available DNS servers, such as OpenDNS. MAPINET’s Secretary General acknowledged this inefficiency, but expects Internet users not to be “techie” enough, the Portuguese news site SAPO Tek reported.

Secondly, this agreement undermines the rule of law. In fact, privatised enforcement circumvents existing legal protections of human rights and fundamental freedoms online. This agreement is not of a legislative nature and will permit websites to be blocked without a court order. Judicial review will only be available ex post. As an incentive, ISPs will not have to incur in any meaningful cost for the tasks performed under this agreement. In fact, copyright associations will jointly and severally pay for any costs incurred by ISPs and any damages derived from legal actions brought by third parties against ISPs. However, ISPs lack of an incentive to defend human rights and fundamental freedoms online.

Finally, several Portuguese citizens reported to EDRi that their efforts to ask for the publication of this agreement have so far failed. However, article 268 of the Portuguese Constitution and Law 46/2007 entitle citizens to have access to public documents by request. If this right is refused, an appeal before the Portuguese Commission on Access to Administrative Documents (CADA) is possible. One of the most insidious aspects of privatised law enforcement is, of course, that the arrangements are “private”, avoiding the safeguards on which democratic societies are built.

DNS blocking
https://en.wikipedia.org/wiki/DNS_blocking

Self-regulation agreement protects copyright in the digital environment (only in Portuguese, 30.07.2015)
http://www.portugal.gov.pt/pt/os-ministerios/primeiro-ministro/secretarios-de-estado/secretario-de-estado-da-cultura/mantenha-se-atualizado/20150730-sec-direitos-autor.aspx

Is online piracy at the end of its days in Portugal? Agreement facilitates website blocking by operators (only in Portuguese, 30.07.2015)
http://tek.sapo.pt/noticias/internet/artigo/a_pirataria_online_tem_os_dias_contados_em_portugal_acordo_facilita_bloqueio_de_-43609kkc.html

Rapid pirate site blocking mechanism introduced by Portugal (31.07.2015)
https://torrentfreak.com/rapid-pirate-site-blocking-mechanism-introduced-by-portugal-150731/?curator=hoje.li

ISPs compensated in case of copyright violation (only in Portuguese, 31.07.2015)
http://www.computerworld.com.pt/2015/07/31/isps-indemnizados-na-violacao-do-direito-de-autor/

Portuguese Commission on Access to Administrative Documents (CADA)
http://www.cada.pt/

(Contribution by Maryant Fernández Pérez, EDRi)

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