Last week the European Parliament passed a new Consumer Protection Regulation [PDF] that allows national consumer authorities to order ISPs, web hosts and domain registries to block or delete websites... all without a court order. The websites targeted are those that allegedly infringe European consumer law. But European consumer law has some perplexing provisions that have drawn ridicule, including a compulsory warning against children blowing up balloons unsupervised and a restriction on abnormally curved bananas. Because of these, the range of websites that could be censored is both vast and uncertain.
The Consumer Protection Regulation provides in Article 8(3)(e) that consumer protection authorities must have the power:
where no other effective means are available to bring about the cessation or the prohibition of the infringement including by requesting a third party or other public authority to implement such measures, in order to prevent the risk of serious harm to the collective interests of consumers:
- to remove content or restrict access to an online interface or to order the explicit display of a warning to consumers when accessing the online interface;
- to order a hosting service provider to remove, disable or restrict the access to an online interface; or
- where appropriate, order domain registries or registrars to delete a fully qualified domain name and allow the competent authority concerned to register it;
The risks of unelected public authorities being given the power to block websites was powerfully demonstrated in 2014, when the Australian company regulator ASIC accidentally blocked 250,000 websites in an attempt to block just a handful of sites alleged to be defrauding Australian consumers.
This likelihood of unlawful overblocking is just one of the reasons that the United Nations Special Rapporteur for Freedom of Expression and Opinion has underlined how web blocking often contravenes international human rights law. In a 2011 report [PDF], then Special Rapporteur Frank La Rue set out how extremely limited are the circumstances in which blocking of websites can be justified, noting that where:
the specific conditions that justify blocking are not established in law, or are provided by law but in an overly broad and vague manner, [this] risks content being blocked arbitrarily and excessively. ... [E]ven where justification is provided, blocking measures constitute an unnecessary or disproportionate means to achieve the purported aim, as they are often not sufficiently targeted and render a wide range of content inaccessible beyond that which has been deemed illegal. Lastly, content is frequently blocked without the intervention of or possibility for review by a judicial or independent body.
This describes exactly what the new Consumer Protection Regulation will do. It hands over a power that should only be exercised, if at all, under the careful scrutiny of a judge in the most serious of cases, and allows it to be wielded at the whim of an unelected consumer protection agency. As explained by Member of the European Parliament (MEP) Julia Reda, who voted against the legislation, it sets the stage for the construction of a censorship infrastructure that could be misused for purposes that we cannot even anticipate, ranging from copyright enforcement through to censorship of political protest.
Regrettably, the Regulation is now law—and is required to be enforced by all European states. It is both ironic and tragic that a law intended to protect consumers actually poses such a dire threat to their right to freedom of expression.