European ISPs Demand Accountability for Overblocking Damages

For a significant period, copyright holders have lobbied for expansive website blocking mandates. Historically, these rightsholders have faced zero direct liability no direct liability when these mandates result in "overblocking"—the accidental censorship of legitimate web content.

EuroISPA, an organization representing more than 3,300 internet service providers (ISPs) across Europe, is now petitioning the European Commission to reverse this trend.

The Core Conflict: Enforcement vs. Legislation

In a recent submission regarding the ongoing evaluation of the Copyright in the Digital Single Market (CDSM) Directive, EuroISPA expressed growing alarm over the "extreme" nature of piracy blocking in certain jurisdictions.

They base their argument on the Commission's own data. An evaluation of the 2023 Recommendation regarding the piracy of live sporting events revealed that such measures had:

"limited positive effects" and failed to significantly decrease piracy levels.

EuroISPA interprets this as a critical signal: The issue is not a lack of laws, but rather how existing laws are enforced.

Consequently, the association argues that the EU should focus on the proper application of current legislation rather than imposing new, more stringent enforcement burdens on providers.

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The Expanding Scope of Blocking

The battle has moved beyond traditional ISPs. Blocking orders are now targeting other intermediaries, such as VPN providers and DNS resolvers. EuroISPA highlights two primary issues with this expansion:

1. These entities often have no direct connection to the infringing material.
2. They frequently lack the technical infrastructure to implement blocks that are restricted by geography.

Case Studies in Collateral Damage

The following table summarizes the "overblocking" incidents cited by EuroISPA:

Regarding the Cisco case, EuroISPA notes that the appeal in Belgium is a pivotal moment. The ruling could redefine the scope of future blocking orders across the entire EU.

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The Path to Accountability

EuroISPA is calling for a structural shift in how blocking is handled. They reference a report from the CEPS (published in April), which explicitly warned against the dangers of blocking by IP address and suggested that rightsholders be held financially responsible for damages.

The Proposed Framework

EuroISPA asserts that new laws aren't necessary because the Intellectual Property Rights Enforcement Directive (IPRED) already provides a basis for this.

Their demands include:

• Establish clearly defined compensation mechanisms.
• Hold rightsholders accountable for "collateral damage."
• Ensure these mechanisms are legally enforceable.

To put this in mathematical terms, the "Cost of Overblocking" ($C_{ob}$) could be viewed as: $C_{ob} = \sum (\text{Legitimate Sites Blocked} \times \text{Economic Loss per Site})$ The goal is to shift this cost from the ISP to the rightsholder.

The Pressure of "Rapid Blocking"

Furthermore, the association criticized the requirement for near-instantaneous blocking. In Italy, for example, providers may be required to act within a 30-minute window.

# Conceptual logic of the "Rapid Blocking" burden
def implement_block(order):
    time_limit = 30 # minutes
    if provider_size == "small":
        risk_of_overblocking = "High"
        resource_availability = "Low"
        return "Structural Burden"
    else:
        return "Manageable"

EuroISPA argues that these tight deadlines create a disproportionate burden on smaller companies that lack the automated tools of larger corporations.

Current Status

The review of the CDSM continues. While EuroISPA pushes for accountability, it is expected that rightsholders will simultaneously lobby the Commission to expand their blocking powers even further.

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Related Context:

• Music labels recently won a Canadian blocking order against Y2Mate and YTMP3.
• Spanish courts declined to fine NordVPN over LaLiga orders.
• The MPA continues to push for similar site-blocking laws in the U.S.

Summary Flow of the Dispute