Last September, in a case initiated by the Belgian Anti-Piracy Federation (BAF), an Antwerp Court of Appeals ordered two major fixed broadband providers (Telenet and Belgacom) to block access to the Pirate Bay at the DNS level. In November, the BAF sent a letter to other Belgian ISPs, threatening legal action unless they also blocked access to the Pirate Bay.

Earlier this week, a Belgian Internet watchdog group (NURPA) reported that one of the three major mobile Internet providers in Belgium, Base, complied with the letter and voluntarily started blocking access to the Pirate Bay.1 Base denies these reports, but users who try to access the Pirate Bay are served a "stop page" with the following text, in Dutch, French, German, and English: "You have been redirected to this stop page because the website you are trying to visit offers content that is considered illegal according to Belgian legislation." The only way offered for the owner or administrator of the website to object is via fax. 

This worrisome trend of voluntary blocking (not exclusive to Belgium) seems to be in sharp contrast with the more recent (November 24th) Scarlet v. Sabam decision by the European Court of Justice (ECJ). In this case — which originated in Belgium — the Court ruled that requiring ISPs to filter traffic over their network violates users’ privacy and their freedom to receive and impart information. Although the ECJ had not issued a final judgment at the time the Belgian case was decided, the Advocate General had already released an opinion.

The Belgian judge, though, deemed the case before the ECJ irrelevant, making a distinction between filtering and blocking. These two types of censorship often appear identical to the end user, but the court argued that they are different technically and legally. Filtering implies the monitoring of traffic in order to remove specific content. Blocking, on the other hand, would only require indiscriminately restricting access to a given domain. The Belgian (Pirate Bay) case concerned (DNS) blocking, whereas the European case concerned filtering. According to the Belgian judge, DNS blocking would not constrain fundamental liberties. But while blocking does not raise as many privacy concerns as filtering does, all other concerns remain very relevant. Without even going in to the dangers of interfering in such an essential component of the Internet, (DNS) blocking access to a website as a whole violates individual freedom to impart and receive information. It also ignores the fact that copyright is not an absolute right and is subject to important exceptions.

The ruling by the Antwerp court and the voluntary decision by mobile Internet provider Base clearly demonstrate the one-sidedness of the debate. Neither end-users nor civil society are consulted, and ISPs simply do not have the proper incentives to protect consumer’s rights. The economic impact of erasing a domain name in their database is negligible compared to having to filter all Internet traffic over their network. Especially when other ISPs are doing the same thing, it might make more sense to comply with right-holders breathing down your neck instead of respecting civil rights. At the moment, it is still unclear what impact the Scarlet v. Sabam case will have, but if we want to maintain a free and open Internet, we have to put important safeguards into place.

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