The nosense of blocking Telegram in Spain from a legal point of view

@ElentirENG ES 3·24·2024 · 18:24 0

This Friday the news broke that a judge from the National Court had ordered the blocking of the Telegram application throughout Spain.

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Telecinco announced that day that the blockage was due to a complaint from Mediaset, Antena 3 and Movistar for a copyright issue. Telecinco also pointed out that the blocking ordered by Judge Santiago Pedraz is a precautionary measure in response to "the lack of response from the application, which has not provided the magistrate with the information he requested". However, today Cadena SER gives another version, stating that those who did not respond to the The judge was the authorities of the Virgin Islands, to whom the judge sent a petition on July 28, 2023. The judicial decision alleges that "only one communication activity is requested from those responsible for the network Telegram".

Spain catches up with three communist dictatorships and two Islamic republics

One detail is striking: right now, the only countries in which Telegram is inaccessible are China, North Korea, Cuba, Iran, Pakistan and Thailand. Thus, with Judge Pedraz's unusual decision to block this application, Spain is at the level of three communist dictatorships and two Islamic republics. Is there legal justification for a measure that no other democratic country in the West has taken?

No other country blocks Telegram due to a copyright issue

I would like to analyze this fact from a legal point of view. Starting with Comparative Law, there is no other country that has Telegram blocked due to a copyright issue, despite the fact that there are numerous media outlets from other countries that would also see their rights affected by possible illegal activities of that application. Judge Pedraz has made a decision that has no precedent in the European Unionor in the rest of the democratic world.

A disproportionate measure

As for the decision itself, it is an absolutely disproportionate measure, since to precautionarily protect the intellectual property of three very specific companies, the rights of 8 million users are violated. It is as absurd as if access to an entire street were blocked to prevent illegal occupation of a home. Incidentally, it is still curious that the motivation for the blockade is a matter of intellectual property and not anything else. And it is especially hurtful that in a country where tributes to ETA terrorists are allowed, an entire application is blocked due to copyright, as if intellectual property were a more valuable asset than the fight against terrorism.

Criticism of the blockade from a procedural point of view

From the procedural point of view, the lawyer Juan Antonio Frago Amada has pointed out today a series of irregularities of this blockade, pointing out that there is no evidence that there has been a judicial hearing, no guarantee has been established to adopt this precautionary measure (let us keep in mind that the blockage of an application with 8 million users, many of them with paid accounts, can cause economic damage to many of them) and Telegram is not even part of the process, "neither as investigated nor as civilly responsible." Frago concludes: "It is very serious that those who are called to protect public freedoms limit the rights to communications in this way."

The blockade violates the jurisprudence of the European Court of Human Rights

This Friday, Yago Menéndez-Abascal, from Google's legal team, recalled the Court's jurisprudence European Human Rights Commission in relation to blocking illegal content. Specifically, he recalled the June 2020 Vladimir Kharitonov v. Russia ruling, concerning a case in which Russia blocked a legal website that had the same IP as an illegal website. The briefing note of that ruling states the following:

When exceptional circumstances justified the blocking of illegal content, a State agency making the blocking order had to ensure that the measure strictly targeted the illegal content and had no arbitrary or excessive effects, irrespective of the manner of its implementation. Any indiscriminate blocking measure which interfered with lawful content or websites as a collateral effect of a measure aimed at illegal content or websites amounted to arbitrary interference with the rights of owners of such websites.

A lawyer announces an appeal before European Justice

This Sunday, Lawyer Josep Jover has announced that he will appeal the block to the European Justice, stating: "According to European Union regulations, Judge Pedraz cannot block Telegram." He has also recalled what is stated in Article 11 of the Charter of Fundamental Rights of the European Union:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Whistleblowers and their lack of respect for the intellectual property of others

Another paradox of this case is that this disproportionate measure is adopted due to a complaint from media groups that indiscriminately use content taken from the Internet without permission, violating the intellectual property of others while sacralizing their own. These communication groups have television programs that reproduce content from networks such as YouTube, TikTok, Twitter, Flickr and others without permission, and almost always without even citing their authorship. In this case I am not speaking from hearsay. In 2017 I indicated here as Antena 3, from the Atresmedia group, reproduced a photo that I took without citing me as the author.

Many people have been in that same situation. This fact has caused special indignation among many users, because this conveys the feeling that Spanish laws are not applied, but rather the law of the funnel, with a very wide side for those media groups and a very narrow for others.

Telegram has a proxy to bypass blocks

From a technical point of view, the blockade ordered by Judge Pedraz is also useless. The only way that Spanish operators have to block that application is to block its IP. But it is a measure that will not prevent you from continuing to use that application, since Telegram offers to its users a proxy service (here they explain how to activate it) to be able to use that application in countries that block it. This proxy has become an ally of freedom of expression in countries such as Iran, Cuba and China, since it allows users to communicate freely, bypassing the censorship imposed by these dictatorships. Paradoxically, now it will also be necessary in Spain.

+ UPDATED 17:18: Judge Pedraz recognizes that blocking Telegram is a disproportionate and excessive measure and leaves it on hold. This is precisely what he denounced in this post.

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Photo: Camilo Jiménez.