With a new decision, the Supreme Court has dealt with the issue regarding when DK Hostmaster, as registry of .dk, must block a .dk domain name when there is infringing content on a website.
The Supreme Court ruling states that if you are affected by infringing content on a website, you can initially get an injunction or a ban from the courts, which is directed at the infringer or an intermediary who technically contributes to the spread of the infringement, such as a web hosting company. These parties will be able to remove just the offending content without compromising otherwise legal content on the same website or causing email addresses to stop working.
The case was brought before the Supreme Court by DK Hostmaster, which is the registry of approximately 1.3 million .dk domain names. Back in February 2018, DK Hostmaster received an order from the Copenhagen District Court to block a .dk domain name that was used in connection with a website that contained allegations of various forms of crime against the management of a named company. However, this content had previously been removed by the web hosting company that had stored the content of the website on its servers. DK Hostmaster therefore appealed the case to the Eastern High Court, which, however, upheld the district court's decision.
DK Hostmaster chose to go ahead and apply for a principal decision at the Supreme Court to clarify the responsibility of a registry to prevent the spread of infringing content on the Internet.
Internet intermediaries
The Internet works as an interplay between different forms of technical functionality provided by different types of providers. Blocking these different forms of functionality has correspondingly different consequences.
A registry performs a "directory" function on the Internet. When an Internet user enters a specific .dk domain name, DK Hostmaster ensures that a technical translation of the domain name takes place, so that it becomes possible to find the unique IP address for the specific server where a specific website is stored. DK Hostmaster does not store content on the Internet. Such services are provided by web hosting providers. DK Hostmaster also does not transmit content data from the server to the Internet user's equipment, on which the website can then be displayed. A so-called internet service provider takes care of that.
A website owner and a web hosting company can remove the content on a website that may be infringing. A registry cannot do that. What happens when a registry is ordered to block a domain name is that all the content on a website - including the legal content - can no longer be accessed from anywhere in the world. Also, all the email addresses associated with that domain name will no longer be usable. This can among other things have the consequence that people's freedom of speech, rule of law and commercial business are violated. It can also have the consequence that those who have registered a .dk domain name and use it, for example dr.dk, tv2.dk, dk-hostmaster.dk and ft.dk, no longer have contact with customers and citizens.
The Supreme Court clarifies who an offended person can go to
The Supreme Court not only makes it clear who an offended person, company or organization can go to in the first instance, but also states that as a last resort in a specific situation there will be an opportunity to get DK Hostmaster to block a .dk domain name. In its ruling, the Supreme Court states that “considering the nature of DK Hostmasters participation, an injunction or ban with a view to block the website must in the first instance be directed against the infringer or other intermediaries who contribute to the spread, including the web hosting company. Only in cases where this - given the purpose of an injunction or prohibition - is not a real possibility, must be considered hopeless or has proved insufficient, can an injunction or prohibition to DK Hostmaster come into play”.
You can read the Supreme Court ruling in the case here (Danish only).
