This summer there was a bit of a groundswell of discontent about a newly drafted gambling bill that would force ISPs to block individual domains that contain illegal gambling. There was talk of censoring the internet. There was a lot of emotion over this, but no one questioned the absurdity of the provisions of other laws that have long been in place. The impact of these laws is much worse and the censorship much greater.
Has it started yet? Censorship is here?
The Gambling Act is not yet fully in force, but the official shill always finds a way to censor. We have been ordered to block (in layman’s terms, censor) ads linking to gambling sites (meaning foreign sports betting sites) on sites hosted by us, on the grounds that it is prohibited advertising. The requested blocking is justified by § 2 para. 1 lit. (f) the Advertising Regulation Actwhich prohibits advertising advertising lotteries and other similar games that have not been authorised or notified under a specific legal regulation. The obligation to block this advertising was imposed on us by the (already criticised by us several times) provision § 5 and § 6 of Act No.480/2004 Coll., on certain information society serviceswhere we, as the alleged service provider, are responsible for the content of the information stored on the websites hosted by us…
Yesterday afternoon we received this request via data box from the Customs Office for the Capital City of Prague. At the same time we received a request, in another message under a different serial number, to provide the customs office with all the information about the owner, the holder of the website, the IP addresses used by the owner, a list of all domains belonging to the same owner. In addition, we have to provide other data (IP addresses of people who edited the source code, people who accessed the administration), including a complete history.
What exactly is it now?
We have to block selected advertisements on two (hosted by us) domains that are hosted on web hosting according to the relevant customs office. We don’t know how they figured it out, but they’re actually on a virtual server. They didn’t advise us how to block it so that we don’t have to shut down the whole VPS 🙂 . On a web host, we would (thanks to our IDS/IPS protection) be able to block it quite accurately and without affecting the rest of the service and thus without damaging the client. At the same time, the question arises whether we would actually want to block advertising on the basis of such a unilateral decision. However, the sites (and ads) run on a VPS and it is technically not possible to “just block it easily” and no one can tell us what to do about it. One VPS can run several dozen domains or even different services of completely different nature. The customer can have, for example, accounting for dozens of branches or a large e-shop on another domain. And we’re supposed to shut it all down? Shutting down a competing eshop before Christmas can be “fabulous fun” and grounds for reporting to customs. Great. An ingenious idea by our legislators, delivered by ingenious officials…
Who will pay for any blocking and who will pay for any damages claimed by the injured client? No one can tell us.
No defense?
No words:
“Pursuant to Sections 68(2) and 85(2)(a) of the Administrative Procedure Code, the appeal against this decision is barred by suspensive effect.”
Is the censor coming?
There was a lot of discussion over the summer about the incoming censor. But he was already here, and since January he’s only been given more tools. But the basis was and is already here, and it’s much worse than what was discussed over the summer. In the summer it was perhaps the “cucumber season” or some lobbying by betting companies. We don’t know.
We did not join the summer initiative prichazicenzor.cz, because it did not fall directly under Czech hosting operators (but rather for Czech ISPs). At the same time, some of those involved wanted to make themselves visible and had a “mouthful” of how to defend censorship, but when it comes down to it, they shut down customers without warning and only on the basis of requests that have little basis in law, while later it may turn out that the shutdown or blocking was not in accordance with the law…
The new law includes the following:
§ 82
Blocking unauthorised internet games
(1) Internet access providers in the territory of the Czech Republic are obliged to prevent access to websites listed on the list of websites with unauthorised Internet games (hereinafter referred to as the “list of unauthorised Internet games”).
(2) A website on which an internet game is operated in breach of section 7(1)(a) shall be entered on the list of unauthorised internet games. 2 lit. b).
(3) The obligation under subsection (1) shall be fulfilled by Internet service providers within 15 days from the date of publication of the website in the list of unauthorized Internet games
Yes, the new law won’t affect hosting as much. They will (purely in theory) have to block gambling sites, but much more often they will have to block banned advertising, based on the previously valid and effective Advertising Regulation Act. That’s our current case. The new law will affect ISPs that provide Internet connections and will have to block access to content that officials with the Treasury Department flag as in violation of the gambling law. The “leverage” for hosting and blocking content has been around since 2004, but it’s only in recent years that it’s been a widely used provision.
Censorship was and is here
People can easily circumvent the new law. Just use a foreign proxy server (ideally with https) or some tor exit and bypass any blocking by any ISP. This, of course, makes any effort at censorship by the Ministry of Finance completely unnecessary. It doesn’t solve anything.
But how do you get around the content censorship that has been in the law since 2004? If the hosting has to shut down the site, you’ll never get to the content. That’s real censorship you can’t get around. The content disappears and is not accessible and never seen again (unless it is in an archive, etc.).
Why has so much been written about the new upcoming gambling law and everyone missed the fact that censorship has been around for a long time? Why hasn’t anyone mediatized(except perhaps us 3 years ago) what is already there and what is real censorship?
For us, as the largest hosting provider in the Czech Republic, § 5 and § 6 of Act No.480/2004 Coll., on certain information society services, are much more important, as we, as the alleged service provider, are responsible for the content of the information stored on websites hosted by us…
Section 5 states the liability of the service provider for the content of the information if the provider becomes aware of the illegality of the content of the stored information.
§ 5
Responsibility of the service provider for storing the content of information provided by the user
(1) The provider of a service consisting of the storage of information provided by a user shall be responsible for the content of the information stored at the request of the user only
(a) if he or she could have known, in view of the subject matter of his or her activity and the circumstances and nature of the case, that the content of the information stored or the user’s actions are unlawful; or
(b) if it has become aware of the unlawful nature of the content of the information stored or of the unlawful conduct of the user and has not promptly taken all steps that may be required of it to remove or make unavailable such information.
(2) The service provider referred to in paragraph 1 shall always be liable for the content of the stored information where it exercises, directly or indirectly, a decisive influence on the user’s activities.
§ 6
The service providers referred to in §§ 3 to 5 are not obliged to
(a) supervise the content of the information transmitted or stored by them,
(b) actively seek facts and circumstances indicating the unlawful content of the information.
The provision of the law is confusing because it considers hosting to be a provider (a service provider is any natural or legal person that provides any of the information society services), while it should be purely a service operator, i.e., for example, the owner of the website or the one who creates (and adds) content to the website. In addition, web hosting falls under the law under the trade business and there under the advertising activity. In this respect, it is questionable whether the Act can be applied to web hosting at all.
Why does it bother us?
In our view, this is about internet freedom and freedom of content on the internet.
In recent years, this has been a very popular provision used not only by various “injured” persons, but also by their lawyers and, more recently, by the Police of the Czech Republic. What’s going on?
The above provision is “threatened” by people or companies (or their lawyers) who feel aggrieved by the content of a website hosted by us.
They are demanding that the site be shut down, the content deleted, the domain shut down… …citing only certain evidence and the aforementioned law. They will not use other means – from a criminal report that should result in a court decision of guilt/innocence, to an interim measure in court, to a lawsuit in court… and they don’t fight the site owner, they go straight to hosting. They take it to mean that hosting is unambiguous and unquestionable and easy to trace. Moreover, they believe that the hosting will get stuck and will want to avoid any problems.
We do not succumb to this pressure because we do not want to “fit” into the role of a judge and we do not want to judge the legality or illegality of the content of websites hosted by us… We protect our clients, but we add a lot of trouble. On the one hand, we enter into the risk of a possible liability for damages in the future, and on the other hand, we expose ourselves to the risk of prosecution…
The current case and the Authority’s position
What did the office write to us?
“In the event that the obligor within the above specified period of time prohibited advertising YYYYYYY, YYYYYY and YYYZZZ disseminated through the domains www.XXXXXXX-XXXXXX.cz and XXXXXXX-XXXX.cz fails to remove or terminate, administrative proceedings may be initiated against him for an administrative offence committed pursuant to Section 8a(1)(o) of the Act on Advertising Regulation by violating the prohibition on advertising lotteries and other similar games not authorised or notified pursuant to the Act on Lotteries, enshrined in Section 2(2) of the Act on Lotteries. 1(f) of the Act on Advertising Regulation, for which a fine of up to CZK 5,000,000 may be imposed pursuant to Section 8a(5)(c) of the Act on Advertising Regulation, with the proviso that the obliged party shall comply with the liberalisation provisions of Section 8b(1) of the Act on Advertising Regulation in conjunction with Sections 5 and 6 of Act No. 480/2004 Coll, on Certain Information Society Services and on Amendments to Certain Acts (Act on Certain Information Society Services), as amended (hereinafter referred to as the ‘Information Services Act’), since the delivery of this decision is a violation of the provisions of Section 5(1)(a) of the Act on Information Society Services, as amended. (b) of the Information Services Act, the objective liability of the obligor for the unlawful nature of the content of information disseminated through the domains www.XXXXXXX-XXXXXX.cz and XXXXXXX-XXXX.cz is established, as well as the obligation of the obligor to take all years that may be required of it to remove or cease the dissemination of the prohibited advertisements YYYYYYY, YYYYYYY and YYYYZ.”
The Office’s position on the whole matter was that they considered it to be prohibited advertising and “basta”. No one can defend against it. According to the authority, this is a fact and you will either comply with our requirements or be fined up to CZK 5 million. Discussion is not permitted.
No one minds?
And no one is rioting. This may be about betting, but next time it may be an ad for something else. Next time, the same authority may designate your advertisement as prohibited. Or the one that Google “serves” to your website via AdSense. And the hosting gets saved to block it… And he will have to.
In the future, it will be enough for AdSense to display an advert on your website (for example, for a lottery) because the official in question, for example, bets (or just visits similarly focused lottery or odds betting websites). And as we know, Google serves ads to clients (visitors to your website) based on “spying” information it has about clients (based on previous visits or preferences or simply based on what interests whom and how). So Google will display ads that are not in compliance with the law (and the official’s view), and so the official will order the hosting company to block the ad. Technically, you can’t just block advertising, but there’s no choice but to block the entire site. Under the threat of 5 million crowns, the hosting will not be too embarrassed and your eshop will be shut down in high season. And then sue the hosting for damages and they will sue the official (or the state). We won’t even speculate on other connections.
Maybe next time they’ll shut down your website…
Just a little. All you have to do is get this or another authority to include some advertising on your site in the following categories (only the parts that may apply to sites have been selected):
(1) It is prohibited
(a) advertising goods, services or other performances or values the sale, provision or distribution of which is contrary to the law,
(b) advertising which constitutes an unfair commercial practice pursuant to a special legal regulation 5); such advertising shall not be deemed to be the placement of a product in an audiovisual work or other sound and visual recording if it meets the conditions laid down in another legal regulation 3a),3b),
…..
(e) dissemination of an anonymous announcement concerning the election between the announcement of the election and the close of voting,
(f) advertising lotteries and other similar games which have not been authorised or notified under a special legal regulation 38).
(2) Comparative advertising is permissible under the conditions set out in this Act and the Civil Code.
(3) Advertising must not be contrary to good morals, in particular it must not contain any discrimination on grounds of race, sex or nationality or attack religious or national feelings, threaten morality in a generally unacceptable way, lower human dignity, contain elements of pornography, violence or elements using the fear motive. Advertising must not challenge political beliefs.
(4) Advertising shall not encourage behaviour detrimental to health or endangering the safety of persons or property, or behaviour detrimental to the interests of environmental protection.
And all this without the possibility of appeal (as it happened to us now – or without the possibility of suspensive effect in case of appeal). Without any way to defend yourself. And under threat of having to shut down the site or else be fined up to 5 million, which is a liquidation issue for most hosting companies.
If an official decides that your ad falls under any of the above points, you have no defence. The appeal has no suspensive effect and so the shutdown must come…
Protecting our clients
We defend our clients “tooth and nail” and this year it has already cost us several hundred thousand in legal fees. Yes, we defend clients who pay us CZK 25 per month against bureaucratic and judicial malice, even at the cost of huge expenses (the most expensive client cost us about CZK 150,000). We are also quite strongly opposed to the various appeals by the Police of the Czech Republic, to the point of dealing with various criminal charges, etc. or threats of prosecution by the Police of the Czech Republic.
Just for the sake of illustration
A couple of recent examples where we stood up to the decision and disobeyed:
- A court that ordered us to release the entire site (including the database) just because they wanted to confirm the (non-)existence of certain files on the site on a certain date.
- In November, we even had to deal with a formal summons before a Paris court for alleged trademark misuse and disobeying a Paris court order to shut down our website.
- A lawsuit where we had to shut down the website for alleged defamation.
- Demands by attorneys for a major TV station that referred to alleged copyright infringement.
And so it could go on (we very often resist the release of email communications, etc.).
But that’s a longer story… and maybe another separate article.
Why are we doing this?
It’s challenging. It’s expensive. But it’s worth it. We fight for our clients. Our clients are the most valuable thing we have.
What happens now?
If we do not comply now, the authority may impose a fine of up to CZK 5,000,000. We have a lot to think about.
Are we supporting illegal activities? On the contrary.
No, we do not support any illegal activities, but we do make sure that any actions taken by the various authorities or courts are backed by the law. Even now, we do not dispute that said advertising may be in violation of the law, which is apparently completely on its head and where we must (willy-nilly) obey, but no one is questioning how we are supposed to do our own ad blocking…
We’re not betting. I (the author of the article) don’t bet on sports matches either. We’re not playing the lottery. There’s plenty of adrenaline in building a company. 🙂 We don’t approve of gambling, but that doesn’t mean we will be silent and won’t point out the nonsense in our legal system.
Does that make sense?
He doesn’t. The whole thing is on its head. No one has ever or anywhere explained to us how we can meaningfully be responsible for the illegality of information on the more than 200,000 domains hosted on our web hosting or virtual servers.
There’s more to it than that.
We have previously pointed out that the Police of the Czech Republic (or other authorities) put the hosting in the role of a judge, referring to a problematic law (or one word in the law).
In the current case, Customs has ruled that it is prohibited advertising. It’s along the lines of, “We’ve made a decision and it doesn’t matter without prior proceedings. Period. The appeal is not admissible (or has no suspensive effect). No one can defend themselves and no one can proceed otherwise”. More precisely – we can revoke, but it is meaningless and we have to shut down anyway. Which is far more absurd.
It’s not just censorship, but also a certain presumption of guilt. The authorities do not only censor, but also automatically decide guilt and innocence (assess the content of an ad or website and decide that it is illegal), without any possibility of appeal. And at the same time “throw it all at the hosting company” and let them deal with it. Otherwise, he will be fined and held liable for damages.
From our perspective, this is a clear problem that borders on a violation of the Constitution and the Charter of Fundamental Rights and Freedoms. That’s the crux of the problem.
What now? Want to know how it’s going to go?
Where do we stand on this now? Well, that’ll be fun… 🙂
Follow our website and our social networks.
We have already discussed this issue in our article Hosting. Pressure. To succumb or not to succumb?
Plus we had an addendum written that we never published. I guess he was too aggressive against the state power 🙂 . Maybe we’ll finally publish it after 3 years.
EDIT: the following text was added at 18:15 on 13. December 2016
The question now is whether we can somehow address the matter directly with the customer. In many similar cases, we are advised not to contact the client to avoid frustrating the investigation. We will study how it is in this case. So maybe he will read our article 🙂
Want to laugh at the end?
No comment…
“According to § 68 para. 2 and § 85 para. 2 lit. (a) of the Administrative Procedure Code precludes suspensive effect of the appeal against this decision, since the removal or termination of the dissemination of the prohibited advertising YYYYYYYY, YYYYYYY and YYYZZZ through the domains www.XXXXXXX-XXXXXX.cz and XXXXXXX-XXXXXX.cz is urgently required by the public interest consisting in particular in preventing the emergence of pathological gambling, preventing the undesirable interest of young people and some other socially endangered groups of the population in gambling at the expense of more valuable and generally more beneficial forms of entertainment and leisure, preventing the reduction of taxes and other fees associated with gambling, and ensuring the means for financing mass sport and culture in the Czech Republic.”
Current status?
Realistically, we are considering not blocking. So hopefully you’ll deposit the fine for us then 🙂 .
PS: We have the money to pay any fine.