How do network blocks arise as a result of sanctions?

This week, on Thursday, a list of URLs to be blocked was distributed by Breko to the German ISPs. After consultation with Breko and the BNetzA, as well as after contacting some of the operators to be blocked (including a streaming service in the USA), answers from the BNetzA on how to deal with the liability issue are still pending. Last week, I had already discussed the problem in general with the responsible person at the EU Commission.
Current status:

• There is a draft of the changes to the sanctions lists on the part of the Council of Europe, which goes via the member states to the BNetzA, among others.
• The political responsibility in Germany lies with the State Secretary for Education and Cultural Affairs, Claudia Roth.
• Some employees of the BNetzA create templates for the blacklists in addition to their actual work.
• The employees do not contact the operators concerned in advance to obtain a deletion
• The BNetzA's net neutrality department checks whether the selected targets might lead to overblocking.
• The list thus cleansed is distributed to the associations (including Breko), which then distribute it to their members.
• With the decision of the EU, the Council proposal is either accepted, amended or rejected.
• From the time of the decision, the ISPs are obliged to implement the proposal.

According to the BNetzA, the ISP must take note of the following:

• Blocking too early (before the decision) is illegal. Customers can insist on compensation (or sue for damages).
• Incorrect blocking (if the decision changes compared to the original) may be illegal in parts and allows claims for damages.
• A blocking that is not carried out is illegal and may be prosecuted by the public prosecutor's office.
• Overblocking (i.e. blocking more than the organisation subject to the sanction) is illegal and will be prosecuted by the BNetzA. Affected customers are entitled to damages.
• The lists of the BNetzA sometimes contain URLs, in which case only the specific web service is to be blocked; a DNS block can be overblocking.
• For the lists issued by the BNetzA, the BNetzA assures that it will not initiate administrative offence proceedings against the ISP if overblocking occurs

In the specific case this week, several disputed pages are listed with deep links (i.e. parts of the offer), which themselves cannot be attributed to Russian authorities or organisations. A query to at least one of the operators showed that he had not been informed in advance and had deleted the channel in question (a website with a link to a Russian offering, i.e. not even hosted by himself). This information was passed on to the BNetzA and Breko with the request to suspend or correct the list. So far there has been no feedback. Likewise, the decision is not yet available: https://eur-lex.europa.eu/oj/direct-access.html?locale=en.

In a nutshell: So far, implementation is only possible if the domains to be blocked have been instructed individually by the managing director of the ISP concerned. The latter then bears the responsibility for claims for damages by customers, non-implementation of sanctions, and overblocking.

Reaction to deletion notice

After the BNetzA was informed on Friday about the successful deletion at coolstreaming, among others, combined with the request for suspension or correction of the list, a response came on Tuesday:

• Clarification that the domain blocking will not be assessed as a violation of net neutrality even for full URLs.
• With reference to the decision of Friday, the lists of URLs are repeated again, but now without deep links, so that a review of the sanctionability can no longer take place.
• Clarification that overblocking is accepted by the sanctions: As long as there is content behind the affected domains that is covered by the EU Sanctions Regulation, the entire domain must be blocked.
• Clarification that deletion is not listed in the Sanctions Regulation, but only the prevention of the transport of the content
• Clarification that deleted content must not be blocked
• Clarification that the BNetzA only communicates with the industry associations, but not with the companies affected by the blocks
• Clarification that the BNetzA is not responsible for the implementation of the sanctions, but that this is exclusively in the hands of the obligated companies (ISPs)
• Clarification that the lists of the BNetzA only state that blockings that include these domains are not considered a violation of net neutrality.
• Of course, this does not apply to domains that do not host sanctioned content. The ISP has to check this independently.

Despite the notice to delete the content, the domains concerned are still on the list. This time, however, without any possibility of control for the Internet provider concerned. Combined with the indication that the blocking of domains that no longer contain sanctioned content is again a violation of net neutrality, even if this was included in the BNetzA's list, this is a strong piece of work: a liability privilege is deliberately suggested, of which the suggesting body already knows that this privilege does not apply.