New EU regulations pass all the time with little fanfare or public interest, but just occasionally the European bureaucracy churns out something that people should really sit up and pay attention.
So it has been this week as the European Parliament passed a new Consumer Protection Regulation which has potentially huge consequences for online freedom in Europe.
Web censorship comes to the EU
The regulations, which are targeted at websites which are alleged to be in breach of European Consumer law empower national consumer authorities across the EU to force Internet Service Providers (ISPs), domain registries, and web hosting providers to block or delete websites.
These consumer bodies are unelected quangos for whom such a power is clearly deeply inappropriate. What is even more concerning is that they have been granted this power with no requirement for a court order or any other kind of safeguards being put in place to stop its abuse.
European consumer is vast, complex, and according to many analysts, protectionist in nature. It has frequently be subjected to ridicule in popular media thanks to such ludicrous provisions as a ban on bananas that are too curvy and a requirement that balloons carry a warning not to let children blow them up unsupervised.
But sadly, this latest regulation is no laughing matter. According to Article 8(3)(e) of the new regulations, if all other efforts to stop online breaches of consumer law have been exhausted, government consumer bodies are able to “remove content or restrict access to an online interface”, force a warning to be displayed on the site, order the deletion of a registered domain name, and demand the removal restriction, or disabling of a site.
An illegal move that is open to abuse and misuse
It appears that in handing these powers to unelected government quangos, the EU has once again massively overstepped its remit and is quite likely in breach of human rights law.
The former United Nations Special Rapporteur for Freedom of Expression and Opinion Frank La Rue published a report in 2011, while he was still in post, which clearly stated that web blocking is a breach of human rights laws.
His description of what he classifies as web blocking in that report is unerringly close to the powers the EU have handed out in their latest regulations.
The real concern is that this power is likely to lead to significant overblocking, either deliberately or accidentally, which will begin to infringe on people rights to freedom of expression and opinion.
The Electronic Freedom Foundation (EFF) have highlighted the case of the Australian company regulator ASIC, which was handed these powers and in 2014 managed to block more than a quarter of a million websites in its efforts to block just a handful.
It also creates a scenario where these quangos can start to put an online censorship infrastructure in place, which is then open to abuse by governments and other agencies further down the line.
Can the regulations be stopped?
Unfortunately, the European political process is subject to so little public scrutiny that the issue has only come to light now that the law has already been passed. This means that all EU members are now required to enforce this new law, including the UK, which is still subject to EU law until we leave next year.
It seems likely that should the new powers be wielded a legal challenge would be likely to follow and will, in all likelihood succeed. It is also possible that a campaign group such as EFF might find the funs to pre-emptively challenge the new powers.
But for now, unelected bureaucrats in the EU now have the power to block websites on a whim. And while the new rules are intended to protect consumers, they ironically do consumer rights a great deal of harm.
EU citizens will of course still be able to turn to a VPN such as IPVanish or ExpressVPN to access any sites that are blocked. But the EU is one of the few places in the world where this shouldn’t be necessary for the purposes of getting around excessive state censorship of the internet.