Sky blocks Newzbin, important legal and technical questions need answering

Francis Davey fjmd1a at
Thu Dec 15 17:46:21 GMT 2011

2011/12/15 James Firth <james2 at>:

(apologies for poor quoting)

> The SABAM case is fundamentally different, in that monitoring of traffic is a central part of the blocking order.  In Newzbin it's secondary - to check URLs, an action which could be seen as minimising the risk of "overblocking".  Arnold J said this explicity, more or less, in his October ruling (6 from memory).

That's right the Scarlet Extended case involved an indefinite (in
time) requirement for the ISP to use fairly expensive software on
*all* traffic to examine the contents of that traffic. That is very
considerably more awful than the Newzbin block where:

- BT's evidence was that it would cost a few thousand pounds to implement
- most packets are unexamined
- packets going to specific IP addresses are sent through the
Cleanfeed proxy and then only the requested URL is inspected

As for the costs of the hearing, I think Richard Arnold was wrong to
ask each party to bear its own costs for the final part of the
proceedings - really sorting out the form of order. It seems to me
that might be interpreted as a precedent that will cost ISP's at least
their own costs for dickering over the details of the order.

And *that* is where all the difficulty is. Trust me one of the most
important and difficult (and also fun) parts of injunction hearings is
the wording of the order. Here there is no practice direction
standard, so its a blank sheet of paper.

And the order itself is pretty poor. Any lawyer's heart should sink at
having to begin a line "for the avoidance of doubt". That's almost as
bad as putting assert()'s all over your code. There is also no clear
way to review what is on the list.

> If anyone wants to pay us to get a formal legal opinion we're accepting donations ;-)

Out of interest, who is "us"?

Francis Davey

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