Telefónica’s failure with Twitch showed the power that operators had to block access to certain websites. Suddenly, from the vast majority of operators it was not possible to access that website. However, smaller operators such as Digi, Pepephone, SUOP, Adamo or Parlem did allow access without problems.
Why that difference? We explain what role operators play in blocking streaming or download websites and why these small operators are sometimes not required to apply these restrictions.
Weekly listings: the big operators block websites without waiting for the judges after an agreement with the Government. In April 2021, the Government reached an agreement with the operators to pursue download websites. At that time, a protocol was signed that expanded the use of what was already anticipated by the reform of the Intellectual Property Law. The result is a technical committee that weekly creates a list of “mirror” websites to those previously blocked by the judges. And if you enter that list, they block the web. That is, they block websites that have not been blocked by a judge. They are simply similar, by their own criteria.
And not all the operators were in this agreement. Among the participants are the Government itself, the DigitalES employers’ association and the Coalition of Creators and Content Industries that includes Telefónica, Orange, Vodafone and MásMóvil. Additionally, Euskaltel and Eurona were included. If a website has been blocked from the big operators but not from the small ones, one of the possibilities is that it has been included in these weekly listings. But it is not the only way.
Different listings applied by different operators. Throughout 2021, the government blockade with the operators claims to have blocked 172 domains and 697 subdomains. In addition to this, they explain that they are seeking to extend the agreement to more agents in the digital ecosystem. That is, this weekly list could be applied by new operators.
In addition to this agreement, as Broadband explains, there are other weekly listings covered by the Second Section. One of them has been managed by Telefónica Audiovisual since February 2020 and affects 39 websites. This list must be monitored by smaller companies such as Euskaltel, Lycamobile, R or Telecable, not Digi, which at that time was considered too small. Digi was included in Telefónica’s list with La Liga in December 2021, but not Lycamobile. Depending on what the resolution establishes, it applies to certain operators.
The scale is to have at least 0.1% market share. The different blocking orders are generated as a result of resolutions of the Second Section, dependent on the Ministry of Culture. According to Banda Ancha, in resolutions such as that of emudesc.com, in June 2019, we see that the criterion is that the operators that currently have more than 0.1% market share are the ones that must comply the resolution. This means that local companies or very small operators at that time do not have the obligation to block the website in question. And therefore the users of those operators can continue accessing.
That percentage is marked so low so that practically all users are subject to the block, but also so that such small companies do not have added obligations or have to allocate resources to monitor that the resolution is being applied. But it also has a consequence and that is that, as market shares change, so do the operators subject to the blocking of each website.
How the blocking of a website works from the Second Section. It is important to note that the Second Section of the Intellectual Property Commission is not a judicial body, but an administrative one. However, they have the power to target websites that infringe copyright. The operation of the Second Section follows a series of steps: the owners of the rights alert, the Second Section contacts the offenders to remove the content within 48 hours, if they do not do so, the operators are asked to block the content and finally it is a judge who authorizes or denies what is said by the Second Section.
The correct procedure is to request it from all the operators registered by the CNMC. Despite the fact that there are specific resolutions of the Second Section that only point against the large operators, the usual thing is that these resolutions proceed to request the blocking of all the operators registered by the National Commission of Markets and Competition (CNMC).
Borja Adsuaradoctor of law and consultant in digital communication, points out that “the owner of rights has to file a complaint previously accrediting that he has contacted the offending website urging the removal of content but it has not paid attention to him. Subsequently, after an administrative process if the offender does not remove the content, it goes to court and the Second Section asks the judge to order the blocking of all operators registered in the CNMC registry.
Small operators therefore do not block websites at the same rate because, on the one hand, they do not participate in protocols and weekly listings, and on the other hand, they are sometimes excluded from the resolutions of the Second Section due to having too small a market share.
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George is Digismak’s reported cum editor with 13 years of experience in Journalism