“I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”
The other day the European Parliament has repassed the Consumer Protection Cooperation (CPC) regulation, with an eye on the creation of an effective mechanism to combat rogue traders both online and offline. Provisions stipulated therein are bound to enforce consumers’ rights in the Single Market and close legal loopholes, which are exacerbated because consumer protection systems differ among EU member-states.
Investigation and enforcement powers of national consumer authorities shall include, among others:
- requesting information from domain registrars and banks to identify rogue traders,
- purchasing goods or services as test purchases, including under a cover identity (“mystery shopping”),
- ordering the explicit display of a warning to consumers, or ordering a hosting service provider to remove, disable or restrict access to an online interface (e.g. website or app) if there are no other effective means to stop an illegal practice,
- imposing penalties, such as fines or periodic penalty payments, and
- seeking to obtain commitments from the trader to offer adequate remedies to the affected consumers, and informing them of how to seek compensation.
One of the less appealing features of the regulation, however, is the introduction of an overreaching general website blocking provision. Instead of providing for the removal of content that infringes on consumer protection laws as a last resort measure, the regulation introduces overreaching internet blocking measures and sets them readily available in the hands of the national competent authorities, without prior judicial authorization.
In particular, Article 9 par. 4 of the regulation on the minimum powers of competent national authorities provides that:
Competent authorities shall have at least the following enforcement powers: […] (g) where no other effective means are available to bring about the cessation or the prohibition of the infringement covered by this Regulation and in order to avoid the risk of serious harm to the collective interests of consumers:
(i) the power to remove content or to restrict access to an online interface or to order the explicit display of a warning to consumers when they access an online interface;
(ii) the power to order a hosting service provider to remove, disable or restrict access to an online interface; or
(iii) where appropriate, the power to order domain registries or registrars to delete a fully qualified domain name and to allow the competent authority concerned to register it; including by requesting a third party or other public authority to implement such measures; […]
Such a provision forces internet access providers to create a website blocking infrastructure, which is viewed by many as a tool to potential abuse for any number of other purposes, including censorship. To give a recent example, independence-related websites were blocked in Catalunya just weeks ago. The swift blocking of those websites was made possible only because of website blocking infrastructure that had previously been put in place for other purposes, such as barring access to sites involving copyright infringement.