Dutch Pirate Party wants to sink BREIN… and the rule of law?
In January of this year Dutch anti-piracy outfit BREIN successfully sought an injunction against Internet providers Ziggo and XS4ALL, forcing them to block access to the Pirate Bay for their customers. BREIN went after the providers because the Pirate Bay itself ignores a previous court order demanding the cessation of their activities in the Netherlands.
The blockade of the Pirate Bay was quickly circumvented through the use of so-called ‘proxy servers’. The Dutch Pirate Party, a political party seeking copyright reform, operated such a proxy server and encouraged people to bypass the blockade. Unsurprisingly, BREIN demanded an end to these activities by the Pirate Party. The result was a public outcry against BREIN. Many Internet experts in the Netherlands, including legal scholars, applauded the move by the Pirate Party. The Pirate Party itself cried shame upon BREIN, accusing them of censorship and Big Brother practices. Few seem to care about the ramifications of the Pirate Party’s conduct though.
Let me make one thing very clear before I continue: I’m not a fan of blocking sites or filtering the Internet. There are very serious risks and drawbacks attached to blocking and filtering. But having said that, I do feel that the actions of the Pirate Party are wrong and even pose a threat to the rule of law.
We live in a democratic, constitutional state. BREIN has simply used the legal means at their disposal and followed the route prescribed by the law. You may disagree with BREIN (and there are good reasons for doing so), but in the end it is up to our independent judiciary to determine whether their demand for a blockade is an effective and proportional measure that respects subsidiarity.
It is clear that the Pirate Party disagrees with the verdict handed down by the judge, which is their democratic right. But rather than supporting an appeal or seeking a change in the law, the Pirate Party decided to actively oppose the verdict and has taken steps to circumvent it. As such, their actions undermine the authority of our judiciary, and thus the foundation of our constitutional state. This is even more worrying given the fact that the Pirate Party is an official political party. A political party, even one that is not in power, should respect the separation of powers.
The Internet may be a different place than the physical world, but even on the Internet we need respect for the rule of law. As its aptly chosen name already suggests, the Pirate Party clearly has none.
Bart Schermer is Assistant Professor eLaw at the University of Leiden and also published this article on their new official weblog LeidenLawBlog.nl
Comments(5)
Dirk Poot
I believe there are some factual errors in the 2nd to last paragraph. At no point has the Piratenpartij broken the law or circumvented the law. The Pirateparty has followed the court decision to the letter. The Voorlopige Voorziening is very clear on that. The judge ruled that the Pirateparty operated within the confines of the ex parte and that BREIN had no grounds to execute the fines.
Furthermore, XS4ALL and Ziggo users are neither forbidden by a court order nor by Dutch law to visit The Piratebay. Only providers XS4All and Ziggo have a judgement against them.
Finally, as far as I can tell the Pirateparty has not been the agressor in this dispute. The Pirateparty set out to prove that, contrary to what BREIN argued in court, the ISP-blockade is not ‘the most effective tool that can be applied without serious repurcussions’. It should be pointed out that within 3 months of the original verdict, BREIN has actively pursued numerous private citizens and minors threatening them with €1000 fines per day, merely for operating a proxy.
This process had not been the most elegant maybe, but obviously necessary to point out the inherent risks in the ISP-filter verdict as well as to prove the copyright law has been allowed, over generations of parliamentary neglect, to become an overbearing legal force threatening basic human rights as freedom of expression, right to privacy, the freedom of information and freedom of political expression, to name a few.
Samir Allioui
It's also interesting to note that BREIN continuously works on rentseeking, the building of a legal framework; and even openly admits to do so. Often, the reasoning in court is jurisprudence based on jurisprudence, based on jurisprudence; created mostly by BREIN and it's henchman itself. It might be a stretch, but it's safe to say that this one foundation is turning the functioning of the Dutch legal system into a British one. This does not only circumvent the rule of law but also opposes a threat to the very functioning of democracy it self. Having said just that however, it is not BREIN i put to blame, but a passive parliament that wisely keeps it's mouth shut in order to not loose votes.
Bart Schermer
Dear Dirk and Samir,
Most of my comments are posted at the Leiden Law Blog, so its probably most convenient to continue the discussion there.
thanks!
Frank
Bart, why publish twice?
Bart
@Frank, I crossposted this from our Leiden Law Blog. Given the topic I thought it would also interest the FoC readers.
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