Guardian columnist calls for UK ISPs to be overseen by foreign courts

There's another clunking piece by Helienne Lindvall on the MediaGuardian website following the failure of the Pirate Bay appeal.

Helienne spots that the court judgement against The Pirate Bay doesn't really make much difference, because the search engine has just moved its base from Scandinavia to the Far East. Rather than think 'hmm, that means that taking an approach which tries to just close Pirate Bay down which turns into a massive game of whack-a-mole wasting time and resources which could be better used in other ways', Lindvall's response is that what is needed is just more legal sanction.

After all, a Swedish court can only deal with crimes committed within its jurisdiction.

Up to point. If there is a desire for a national court to deal with alleged crimes which take place outside its boundaries, then laws can be drafted to that effect - for example, this has happened with sex tourism crimes.

I agree with Per Strömbäck of the Swedish thinktank Netopia when he says intermediaries such as internet service providers have to take more responsibility. Once a court has established that a site is committing illegal activities, the ISPs should have a duty to block that site, using technical methods that are similar to those used to protect against viruses, so that it wouldn't be an invasion of personal privacy. Without the co-operation of the ISPs and other intermediaries, even a conviction by the supreme court is toothless when it comes to the internet.

You could argue that an ISP should obey the injunctions of its home court, but what Hel is after is for ISPs to block access to websites which have been found guilty of "illegal activities".

Earlier on in her piece, Lindvall attacks the Bay team for responding to complaints in childish terms, and then she goes on to float this idea which sounds like something out of a Newsround debate.

A foreign court says that a website does something illegal, so it must be blocked automatically by an ISP.

So, say, a court in a nation which has made homosexuality illegal finds a health site "guilty" for its safer sex advice - BT would be forced to block that in the UK.

A totalitarian government's puppet courts finds Google guilty of sedition for linking to opposition parties? Talk Talk would be obliged to row-in and slap a block on the site.

It's somewhat unpleasant, and plainly absurd. Unless all Lindvall means is that she wants ISPs to sometimes block some sites which are found guilty of some crimes in some states. Which is alright in principle - why not try and come up with a list, and think about seeing if you can find an MP to introduce legislation, rather than calling on telecommunications companies to act as censors?

Of course, it'd be a waste of time. Even if UK ISPs were obliged to comply with Swedish court rulings on matters of copyright, how would a legally-enforceable block on the Swedish Pirate Bay also apply to the 'new' Pirate Bay overseas? They've moved to a place where they're not behaving illegally - so would an ISP be somehow obliged to block a website that hasn't been found guilty of any crime in the place where it's located?

Or would the fact that this is the Pirate Bay, which has been convicted elsewhere, be enough to trigger a ban?

But what if they'd reopened not as The Pirate Bay, but, say, Long John Silver's Website? Would the organisation being the same be enough to trigger the block?

So how about if the ownership details changed slightly? Say, to the owner's cousins?

Would the ISPs then be somehow supposed to block access to a site operating legally on its home territory, run by unconvicted people, under a different brand?

Wherever you stand on the moral question, it's clear that such an approach cannot work.

Lindvall finishes with this:

But, more importantly, the question is: how do we protect the individual's legal rights when corporations, such as many ISPs, refuse to take any responsibility for what goes through their pipes? Till we deal with that issue, I'm afraid legal convictions, such as this one, mean very little.

Copyright is very important to some people. Fair enough. But a much more important principle is that ISPs should not be held accountable for what goes through "their pipes" - because we don't want BT to get sued for the thoughts of their customers; we don't want TalkTalk deciding to not to carry certain traffic because they'd be treated as a publisher rather than a dumb pipe.

However urgently you believe that making a few more quid for Chris Martin is vital, that idea - that the responsibility for what appears online should belong to the people putting it online, not the people who run the infrastructure - is much, much important.

If Helienne Lindvall believes that the operators of the M6 toll should be stopping lorries carrying counterfeit CDs from driving up its roadway, then her views would at least be consistent. But I think she'd admit that is a crazy idea, and the only result would be lorries taking different routes while everyone else is inconvenienced and frustrated. Why can't she see the metaphor holds just as firmly online?