<h2 class="posttitle">
EU Parliament Seminar Looks At Risks Of Outsourcing Policing Of Internet </h2>
<small><a href="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">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</a><br>
<br>Published on 8 December 2011 @ 12:43 am</small>
<p>By <a href="http://www.ip-watch.org/weblog/author/monika/" title="Posts by Monika Ermert" rel="author">Monika Ermert</a> for Intellectual Property Watch</p>
<p>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).<span id="more-18485"></span></p>
<p>“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.</p>
<p>The seminar was organised by Liberal Member of European Parliament Marietje Schaake.</p>
<p>The intermediaries are the focus of ongoing discussions about how to
create more effective approaches to internet regulation. Schaake
recently released an <a href="http://euletter-sopa-pipa.tumblr.com/">open letter</a>
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.”</p>
<p>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.</p>
<p>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.</p>
<p>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 (<a href="http://wikileaks.org">wikileaks.org</a>) and donations via payment
companies were all blocked or removed.”</p>
<p>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.”</p>
<p>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.”</p>
<p>“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.</p>
<p>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.</p>
<p>“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 <a href="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">Internet Freedom conference in The Hague</a> make announcements about a platform by the EU to support democratic internet self-governance.</p>
<p>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. </p>
<p>“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.”</p>
<p>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. </p>
<p>“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?” </p>