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DNS block and net neutrality
DNS blocks are traffic management measures that interfere with network neutrality. However, they are permitted if the requirements of the European Telecom Single Market Regulation (TSM Regulation) are met.
Because the EU net neutrality regulation prohibits providers from arbitrarily blocking offers, the Federal Network Agency checks whether the block is necessary to enforce national legal provisions and whether the requirements for net neutrality are complied with.
The authority does not evaluate any content, but rather checks whether a DNS block is permitted as an exception.
This is the case,
1. if a rights holder can prove his copyright,
2. his works are published online without his consent,
3. he has no other option to remedy the violation of the law,
4. if the blocking is reasonable and proportionate.
Only when the Federal Network Agency considers the block to be justified will the Internet access providers implement it.
A judicial review or a renewed review by the Federal Network Agency is possible at any time.
Website bans for copyright infringement
Fiete Wulff, head of the Federal Network Agency's press office, answers three questions about DNS blocking.
Illegal websites: copyright infringement
Rights holders such as music or film studios can take action more quickly against operators of websites whose business model is based on copyright infringements. In this context, an illegal streaming portal that made current series available free of charge was blocked.
frequently asked Questions
Does the Federal Network Agency have to check every DNS block?
If the Federal Network Agency receives information that a DNS block could violate the TSM regulation, it must check whether there has been a violation. In accordance with Article 5 (1) of the TSM Regulation (Regulation (EU) 2015/2120), the Federal Network Agency ensures and monitors that the requirements for access to the open Internet are complied with. This also includes checking whether DNS blocks that have been set up comply with the requirements of the TSM Regulation.
What requirements does the European TSM regulation make?
Basically, all data in the network must be treated equally and no content may be blocked.
Traffic management measures are permitted in exceptional cases
- to comply with legal requirements,
- in the case of an order by a court or authority,
- to protect network integrity and security as well as
- to prevent impending or mitigate extraordinary or temporary network overloads.
Traffic management measures, which also include the blocking of websites, are permitted under Article 3 Paragraph 3 Subparagraph 3 a TSM-VO as long as and to the extent that they are necessary to comply with national legal provisions to which the Internet access provider is subject.
What are the tasks of the Internet Copyright Clearing House (CUII)?
With the establishment of the clearing house for copyright in the Internet (CUII) on the initiative of rights holders and Internet access providers, a Audit Committee established with the participation of former BGH judges.
The committee examines the requests of the rights holders to determine whether the legal eligibility requirements for the establishment of the block are met. The examination committee bases its assessment on the preconditions for blocking claims developed by the highest court rulings.
With the clearing house procedure, DNS blocks can be implemented more quickly and by all participating Internet access providers.
Which pages are blocked with the CUII procedure? Can private companies easily decide which websites to block?
With the procedure of the CUII only structurally illegal pages be blocked.
This is the name given to websites that are specifically geared towards the infringement of copyrighted works. With regard to the overall ratio of legal to illegal content, the size of the legal content is irrelevant on such websites.
In practice, rights holders - such as music or film studios - lack efficient access options to take action against website operators whose business model is based on copyright infringements. Illegal streaming sites are often operated from non-European countries that refuse or make cooperation with the authorities difficult. However, these pages can be reached from Germany.
Rights holders can request that such websites be blocked by the internet access provider if they have no other option to remedy the infringement and if the blocking is reasonable and proportionate.
How do the Federal Network Agency and CUII work together?
- The CUII review committee forwards its review results to the Federal Network Agency in the form of a recommendation. This is done on a voluntary basis. The review or statement carried out by the Federal Network Agency is also informal at this point in time. Because the TSM-VO does not provide for an ex-ante test, approval or notification requirements for DNS blocks of Internet access providers at the Federal Network Agency.
- The Federal Network Agency assesses the recommendation of the CUII in favor of the respective requested DNS block with regard to the network neutrality requirements and transmits its assessment to the CUII.
- Only if there are no net neutrality concerns do the Internet access providers set up a DNS block.
What exactly does the Federal Network Agency check?
The Federal Network Agency checks in each individual case whether the requirements of Article 3 Paragraph 3 Subparagraph 3 a TSM Regulation are met. The establishment of a DNS block is compatible with the requirements for net neutrality if it is necessary to enforce national or European legal provisions.
Such national legislation are for example § 7 Abs. 4 Telemediengesetz (TMG) / § 7 Abs. 4 TMG analogous as well as § 109 Abs. 3 Medienstatvertrag (MStV), respectively as European regulationArt. 8 Paragraph 3 of Directive 2001/29 / EC.
After this copyright the rights holder alone can decide when, where and how his legally protected works are published. Section 7 (4) TMG therefore gives the rights holder a claim against the Internet access provider to block the use of information.
requirement This means that the rights holder can prove his copyright, he has no other option to remedy the infringement and that the blocking is reasonable and proportionate.
The rights holder must have tried unsuccessfully to take action against the infringing website operator. In addition, "over-blocking" must be avoided. This means that the websites concerned must be structurally copyright-infringing websites, for which legal content is irrelevant in relation to the overall relationship between legal and illegal content on the website.
Relevant case law of the BGH and the ECJ exists on both aspects and is used as a basis.
How is it ensured that the fundamental rights of all those concerned are adequately taken into account?
Aren't these bans censorship?
When examining the reasonableness and proportionality, a balance must be drawn between the fundamental rights of the property protection of the copyright holder and the freedom of information and informational self-determination of Internet users. Such Proportionality test always has to be done when fundamental rights are concerned. This applies to both courts and authorities such as the Federal Network Agency.
Despite the blocking of Internet pages, Internet users still have the option of legally obtaining copyrighted content, for example from commercial streaming services. By blocking structurally unlawful websites, the copyrighted content of these pages is not "forbidden" or "censored", but the unlawful publication of this content is prevented without the consent of the copyright holder. The provider of a business model based on legal violations should not be able to hide behind a few legal offers. Therefore, according to the BGH, blocking is not only reasonable if only illegal content is kept available on the website.
How can illegal DNS blocks be avoided?
In the CUII procedure, only websites that are clearly structurally contrary to copyright are to be blocked. Blocking therefore only takes place if the Federal Network Agency does not have any concerns about network neutrality.
The voluntary procedure of the CUII has no prejudicial effect on the factual and legal situation. In other words, if the situation changes after a block has been set up or if the website operator files a complaint, the Federal Network Agency will subsequently check the DNS block again.
If Internet access providers apply traffic management measures contrary to Article 3 of the TSM Regulation (Section 149 (1b) No. 1, (2) No. 2 TKG), the Federal Network Agency can impose a fine of up to EUR 500,000.
Don't the courts have to be involved?
If a blocking claim already results from a legal regulation, no (additional) court order or confirmation is necessary. In the meantime, there has been established case law of the BGH and the European Court of Justice on the blocking of structurally copyright-infringing websites. As a result, right holders no longer need to go to court to enforce a DNS lock.
A judicial review of the DNS block is possible at any time, for example at the instigation of the website operator.
ECJ on the blocking of Internet pages by the Internet access provider
BGH on the liability of the internet access provider
Where can I find out which websites have been blocked?
The CUII publishes all recommendations on this page.
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