In some countries, there is no technical [internet] filtering in place; it is the legal system itself which acts as the primary mechanism of Internet censorship. Threatening ISPs, or content providers such as search engines, with ‘takedown’ requests is one of the most undocumented methods of censoring Internet content. In some cases these can be formal legal requests for removal due to copyright violation or claims of libel/defamation or informal requests due to allegations of supporting terrorism. ISPs are not required to report such ‘takedowns’ and most happen in complete silence. In these cases, ISPs act as judge, jury and enforcer at the same time and will act to remove content rather than fully investigate the claim, in order to avoid liability.
The questions surrounding the lack of transparency and accountability led Christian Ahlert, Chris Marsden and Chester Yung, from the Oxford Centre for Socio-Legal Studies, to investigate what they termed the ‘privatisation of censorship’. In 2003, they conducted an experiment, known as ‘Liberty’, to test notice and takedown procedures in the US and Europe. They created a web page containing text that was clearly in the public domain and uploaded it to ISPs in the US and the UK. The uploaded text was an excerpt from Chapter 2 of J S Mill’s On Liberty, which discusses freedom of the press and censorship. They then created an email account with a free service for a mythical organisation called the ‘John Stuart Mill Heritage Foundation’ and sent takedown notices to the ISPs claiming copyright infringement. In the UK, ISPs took the information down, but in the US, they asked for more details, including a declaration ‘under penalty of perjury’ that the claim was valid. At this point, the researchers terminated the experiment. However, they noted that if they had supplied the language required by the ISPs, the takedown process could have continued.