What I agree with (as a lawyer):
- That such measures are a desperate attempt to achieve a virtually impossible goal, usually employed by judges or prosecutors who only have a limited understanding of the way the internet works - That the recipient of such a court order should be entitled to some kind of legal remedy (is there any justification in the court order for the absence of a legal remedy?) What I don't agree with: - That it is censure: An example: I am not entitled to publish a newspaper article stating that "X is a pedophile" (provided he isn't). Why should I be entitled to do the same on a website? Free speech is one of the main achievements of modern societies, yet its abuse does not deserve protection. In the current hysterical climate, false accusations of pedophile acts or terrorist links, for example, destroy personal and professional lives. - That it would have been easier to simply ban the website operator from publishing the website. ANY judge, prosecutor or plaintiff WILL proceed against the operator IF IT IS LEGALLY POSSIBLE. Sometimes it isn't (e.g. if the operator hides behind a PayPal account registered in Singapore). It is in these cases that desperate attempts are made. I have to confess I have also asked for exotic judicial measures in such cases, since there was no other way (except hacking the site) of getting a result. (I have not seen the court order and do not know what the situation was in the present case.) What might be a way to proceed: In most cantons, there is a special legal remedy which always applies, such as an "Aufsichtsbeschwerde". It is not directed against the measure but against the person taking such measure. These remedies are rarely successful (and very unpopular with officials). Yet, if a group of providers wanted to set an example against pointless court orders, it might be worth a try. Christa ________________________________ Von: [email protected] im Auftrag von Yann Gauteron Gesendet: Di 17.02.2009 15:40 An: [email protected] Betreff: Re: [swinog] Post from Canton de Vaud I fully agree with this statement, reason why I was pointing out that a lawyer opinion would be welcome. I'm pretty sure that every people reading this topic on SwiNOG is not sure that such a request is fully supported by a law. Now, I am not sure that some customers will recourse because one website is blocked from a couple of ISPs. But even, it remains an ethical question for the ISP to decide if they just carry bits and bytes (as the Swiss post carry letters) without worrying what these bytes are coding (as the Swiss post does; as of today they do not filter your mail to drop invoices and ads for delivering only personal letters and postcards). 2009/2/17 Tonnerre Lombard <[email protected]> Salut, Yann, In my opinion it is not clear so far whether or not it is legal at all for an ISP to block web sites. I think that blindly doing so - especially by a dubious court order - might give customers a legal right to recourse.
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