[AfrICANN-discuss] EU Parliament Seminar Looks At Risks Of Outsourcing Policing Of Internet

[Anne-Rachel Inné]

 EU Parliament Seminar Looks At Risks Of Outsourcing Policing Of Internet
http://www.ip-watch.org/weblog/2011/12/08/eu-parliament-seminar-looks-at-risks-of-outsourcing-policing-of-internet/?utm_source=post&utm_medium=email&utm_campaign=alerts

Published on 8 December 2011 @ 12:43 am

By Monika Ermert <http://www.ip-watch.org/weblog/author/monika/> for
Intellectual Property Watch

Self-regulation and its potential pitfalls when it comes to circumvention
of due process by pushing enforcement to intermediaries was the subject of
a seminar held in Brussels today (7 December).

“Do we really want to build a society where we have one rule offline based
around standards and long established principles of due process and
independent judgment, but no such rule online, just because we have an
intermediary there?“ Malcolm Hutty, president of EuroISPA, the European
Association of Internet Service Providers, asked during the seminar.

The seminar was organised by Liberal Member of European Parliament Marietje
Schaake.

The intermediaries are the focus of ongoing discussions about how to create
more effective approaches to internet regulation. Schaake recently released
an open letter <http://euletter-sopa-pipa.tumblr.com/> to the members of
the US Congress, urging them to vote against two draft US laws that are
seen as pushing intermediaries to faster block websites based upon
provisions that she said are “too vague,” and which are making whole
websites inaccessible not only in the US but worldwide. “Companies wishing
to offer online services will be forced to monitor all communication on
their platforms and filter anything which could possibly be an infringement
of IPR.”

Werner Stengg, head of the “Online Services” Unit at the Internal Market
and Service Directorate, said that the liability exemption for internet
service providers in the EU E-Commerce Directive would be kept in place
unchanged. The Commission had decided to not open up the Directive in the
current review process. Instead, it is preparing a Communication to clarify
the notice-and-takedown procedure that is part of the E-Commerce Directive.
According to article 14 of the E-Commerce Directive, providers that store
third party content can be held liable if they do not block access to
content after they have been notified of its illegality.

By explaining more clearly what quality such notices must have and what
would happen if legal content was taken down, or what constitutes slow or
fast take-down, the Commission could potentially introduce clarifications
and add to transparency and fairness, Stengg explained during the meeting
in answer to a question from Katarzyna Szymielewicz, human rights lawyer
and co-founder and executive director of the Polish Panoptykon Foundation.
Szymielewicz warned that courts in Poland have been struggling for years to
interpret the liability regime of the Directive. They were the very
questions of what kind of platforms and providers were covered by the
liability regime in the Directive and the remedies for users that had their
legal content deleted by big content providers who played it safe on
allegations of illegality.

That intermediaries would be in a “perfectly balanced position to make
rulings on illegality” was one the ten myths about “privatized policing and
law enforcement” presented by Joe McNamee, political analyst at European
Digital Rights (EDRi). McNamee referred back to the US case of Wikileaks in
the US, where Visa, Mastercard, Paypal and Amazon all feared reputational
damage from providing service to Wikileaks once it was accused by high
level US politicians of being a terrorist organization. “As a result, no
formal charges of illegal behaviour were ever made against Wikileaks,”
McNamee said, yet “their web hosting, their domain name (wikileaks.org) and
donations via payment companies were all blocked or removed.”

Another myth was that there are no unintended consequences for the online
market by private policing, he said. The fact that intermediaries are
increasingly coerced into interfering with traffic for the interests of
other businesses while they at the same time were asked not to interfere
for their own interests to adhere to network neutrality standards,
according to McNamee is a “blatant and untenable contradiction that will
ultimately threaten the online ecosystem.”

Work on takedown notices could get rather demanding for small companies.
Schaake reported that she got the number of 20,000 takedown requests by a
rather small enterprise in her country. This also would create a push to
have automatic monitoring at some point, Jérémie Zimmermann, founder of La
Quadrature du Net, warned. He said at the end of the meeting that he had
gotten all the more concerned over what was discussed as “self-regulation.”

“I am just wondering,” he said, “how can we possibly protect the right to
fair trial?. Several speakers also warned that the European Commission
could not under its own rules support “self”-regulation where it interferes
with fundamental rights like freedom of expression or privacy.

For the European Commission, co-regulatory regimes are complementary to
classical legislation and judiciary channels, Nicole Dewandre, advisor on
stakeholder issues at the DG Information Society, informed the seminar
participants. Transparently and openly developed codes of conduct
addressing “shared objectives” could be an addition and made use of where
legislation was not dynamic enough.

“It can be a good way to engage people who know best how to solve some of
the challenges we face on the internet,” Dewandre said. It could also
engage the public in keeping up to standards: “We have a civil society to
stay on the ball all of the time,” she said. Dewandre also announced that
Digital Agenda Commissioner Neelie Kroes would in speeches on 8 December at
the Internet Freedom conference in The
Hague<http://www.minbuza.nl/binaries/content/assets/minbuza/en/the_ministry/program-freedom-online-8--9-december-2011.pdf/program-freedom-online-8--9-december-2011.pdf/hippogallery%3Aasset>make
announcements about a platform by the EU to support democratic
internet self-governance.

Hutty in the end tried to explain that self-governance for him is something
distinct from what seems to be on the mind of those who favour outsourcing
enforcement or legislating. Self-regulation is only real self-regulation
when ultimate decisions on scope and procedures are decided by those who
are self-regulating. There is a need for commitment, capability and
competence on the side of the self-regulators, Hutty said, as not every
problem is apt to be dealt with by self-regulators.

“It is easy to say that there is no fundamental right at stake,” Hutty said
to Chris Smith from the Composer and Song Writer Association ECSA, and
Chris Ancliff, general counsel for Warner Music Group, both of whom
underlined the responsibility of the providers. Smith said that as a
composer, he himself feels the pressure, with his music downloaded over a
hundred thousand times, earning him not a dollar. “You say that he is
stealing your content,” remarked Hutty. “But maybe he has a license.”

Should self-regulatory bodies really take on the role of judging such
competing claims? he asked. The question will become even harder given the
fact that there are not only the IP rights holders knocking on the door,
but other requests that might be made to intermediaries as well, from
counter-terrorist actors, to fighters against xenophobia, financial service
regulators, or regulators of medicine.

“What to do about all that bad stuff?,” Hutty asked. Should intermediaries
online not keep to the rule of law and due process, just “because we simply
are complying with orders by anybody who comes to us?”
-------------- next part --------------
An HTML attachment was scrubbed...
URL: https://lists.afrinic.net/pipermail/africann/attachments/20111207/66886e9d/attachment.htm