On 12 January 2017, the Danish Ministry of Justice published a draft law for public consultation providing for network blocking. This step has been expected for several months as part of the government’s measures against online extremism and radicalisation.
Denmark has very limited involvement in the area of justice and home affairs in the European Union, which is why the new EU anti-terrorism directive, which also includes an optional regulation on network blocking, cannot be applied to Denmark.
Any criminal offence can lead to a blocking of networks
Although the official focus is on extremism and radicalisation, the bill leaves open which websites can be blocked. The proposed new paragraph in the Administration of Justice Act states that a website can be blocked if there is reason to believe that it violates Danish criminal law.
Any violation of the Penal Code may constitute a ground for blocking, including new and expanded provisions against harassment of officials that go well beyond insults and defamation.
This “reason for acceptance” criterion is similar to a section of the Administration of Justice Act according to the comments on the bill. There is a criterion for the confiscation of articles from third parties who are not suspects. The Danish Public Prosecutor for Serious Economic and International Crimes used this paragraph to confiscate a large number of .dk domains for rather broad reasons such as copyright infringement.
To clarify: last year the prosecutor announced that 423 domains suspected of cheating Danish consumers had been confiscated.
Low conditions for network blocking
The decision to block will always require a court order, but the “reason for acceptance” criterion and the related case law to seize domain names under the Administration of Justice Act suggests that the requirements for blocking will be quite low. In addition, court rulings will be made by courts of lower instance in which only the police participate.
There is no counterparty in the court case and no possibility to appeal if there is a network block. The owner of a site is only notified after the decision has been made. The situation is similar with the current procedure for the confiscation of domains, which seems to serve as an inspiration for the new blocking regulation.
There is no rule for policemen that less drastic options have to be considered first than blocking an entire website. An example would be the removal of allegedly illegal material by mutual legal assistance with authorities in the countries where the material is hosted. The requirements for blocking would be consistent with the measures used by the Danish police against child pornography.
In 2010, the German Working Group Against Internet Blocking and Censorship published a study on the Danish secret list against child pornography after it was leaked. In just 30 minutes, working group activists managed to remove websites with child pornography content that had been on the blacklist for two years by simply contacting the hosting provider for the site.
Poor protection of fundamental rights
The draft law is very deficient as far as the protection of fundamental rights is concerned. There is a rather vague principle of proportionality, which states that a website cannot be blocked if the blockade is disproportionate to the importance of the case and the disadvantage that would result from the blockade. Courts have only one guideline to interpret the principle. It states that the website of a social network cannot be blocked if only one profile contains material that violates the Danish Penal Code.
In addition to the fact that the principle of proportionality is vaguely formulated, it remains unclear how it should be applied in practice, as only the police appear in court. Since the decision to block courts in lower instances is taken without the possibility of appeal (unless the police request is not granted), it is very unlikely that consistent legal criteria for blocking will be applied.
The comments on the bill stress that blocking of networks is in conflict with freedom of expression. Apart from that, there is no consideration of the impact on fundamental rights. Neither Article 10 of the European Convention on Human Rights nor Article 11 of the EU Charter of Fundamental Rights, which both deal with freedom of expression and freedom of information, are referred to. The Charter is relevant because the EU regulation on net neutrality stipulates that national laws on blocking must be consistent with it.
Notwithstanding the comments on the law, Danish courts are bound by the Human Rights Convention. However, as only the police are part of the judicial process, courts of lower instance, with few resources, have to analyse the entire content of the website themselves and take into account the relevant case law of the European Court of Human Rights (which appears not to have been taken into account by the Ministry of Justice). This is the only way for them to decide whether a blocking complies with the requirements. This is unlikely to happen.
Budget limit could prevent mass blocking
In summary, it can be said that the Danish Ministry of Justice has presented a bill that provides for very extensive powers to use blocking, with very limited legal certainty against disproportionate blockades/blocks, and with probably more formal than real judicial control. This law could lead to significant internet censorship in Denmark.
Interestingly, the Ministry of Justice itself says that the new law could affect many websites and that the police would have to weigh the resources for a blocking order against the gravity of the crime. It seems that the police’s budget limit is the greatest protection against blocking.
Blocking easy to circumvent
The lock will be implemented at the Domain Name System (DNS) service level. Internet service providers will be obliged to help the police falsify the DNS query for the blocked website in their own DNS servers. They must also set up a blocking page that informs the end user that he is visiting a website that has been blocked by a court order. The fact that the blocking is done at the DNS level may be the only comforting element of the design because DNS blocking is easy for Internet users to circumvent.
The Danish Ministry of Justice is aware of this possibility, but thinks that access to illegal material will be reduced for the average user. People who actively search for radical content on the Internet are probably not “average” users anyway.