freedom of expression

Freedom of expression is one of the key benefits of the digial era. The global information society permits interaction on a scale that was previously unheard of – promoting intercultural exchange and democracy. Consequently, the protection of this freedom is central to much of EDRi’s work.

08 Oct 2014

Ex parte domain name seizures in Denmark

By Guest author

At the beginning of October, news media in Denmark reported about the seizure of the domain name raybansolbrillerudsalg.dk, which allegedly had been used for selling counterfeit products to Danish consumers. The Danish e-commerce Foundation, which administers the official Danish accreditation for safe online trading (the e-mark), has compiled a list of 1141 domains accused of selling counterfeit good to Danish consumers, and raybansolbrillerudsalg.dk is the first domain on that list to be seized by the Danish State Prosecutor for Serious Economic and International Crime (SØIK).

The domain name seizure was done in an ex parte proceeding against the Danish domain registry, DK Hostmaster, and was based on section 804(1) of the Danish Administration of Justice Act. DK Hostmaster did not provide any objections in the court case. An English translation of the court order is available at the seized domain.

Under section 804(1), a third party who is not suspected in the case, can be ordered by the court to hand over an object which could serve as evidence in a case subject to public prosecution. After considering screen dumps of the website, the court ruled that the domain name should be transferred to SØIK on grounds that the requested information may serve as evidence of copyright infringements (the design of Ray Ban sunglasses is protected by copyright).

The logic of the ruling is somewhat inconsistent. The domain name itself does not contain any evidence of copyright infringement, and by transferring the registration of the domain name to SØIK, the link to the website containing evidence of the infringement is effectively removed. This leaves SØIK with less evidence, as they now only have screen dumps rather than a domain name that routes to the actual website. Section 804(1) can also be used against a third party to ensure that a final confiscation order by the court can be enforced (assuming that the domain owner is convicted, and that confiscation of the domain is part of the punishment), but this is not mentioned in the court ruling. Moreover, a confiscation order can always be enforced since DK Hostmaster can transfer ownership of a domain at any time.

The real effect of the court order is that section 804(1) of the Administration of Justice Act is used to obtain a preliminary injunction against the website in an ex parte proceeding, where the owner of the domain cannot produce a defence. This clearly violates normal due process procedures. In this respect, the Danish court order is similar to the domain name seizures in the United States, where several hundred domains have been seized by federal authorities in ex parte proceedings.

The present case is not the first domain name seizure by SØIK in Denmark. There have been at least two previous cases, the first one in 2012, where a domain name was seized using the same legal procedure, namely the “evidence rule” in section 804(1) of the Administration of Justice Act. This list was compiled by searching for domains registered to SØIK at the Danish domain name registry. It is possible that more domains have been seized by SØIK and later deleted from the domain name registry.

Needless to say, the number of seized domains in Denmark may soon increase substantially if SØIK is going to apply the same legal procedure against all .dk domains on the list that SØIK has recently received from the Danish e-commerce Foundation.

Furthermore, the use of section 804(1) is not limited to cases of IPR infringement. A domain could potentially be seized ex parte in any case subject to public prosecution. In Denmark, for example insults against a person acting in a public office are subject to public prosecution (section 121 of the Danish Penal Code). Section 804(1) of the Administration of Justice Act could be ostensibly used to seize the domain as evidence of the insult, but in reality to obtain an ex parte injunction against the website containing the insult. Section 805 contains some limitations as the court would be required to consider whether its ruling under 804(1) is proportionate to the effect on freedom of speech, but in practice, there is no guarantee that this will be considered in an ex parte proceeding.

Danish police closes internet scam store after TV consumer program, Danish Broadcasting Corporation (only in Danish, 01.10.2014)
http://www.dr.dk/Nyheder/Penge/2014/10/01/101709.htm

English translation of the court order for the domain seizure (transfer)
http://raybansolbrillerudsalg.dk/raybansolbrillerudsalg-engelsk-kendelse.htm

Website of DK Hostmaster, the Danish (.dk) domain name registry
https://www.dk-hostmaster.dk/english

ICE domain name seizures threaten due process and first amendment aights, ACLU (20.06.2012)
https://www.aclu.org/blog/free-speech-national-security-technology-and-liberty/ice-domain-name-seizures-threaten-due

(Contribution by Jesper Lund, EDRi-member IT-Pol, Denmark)

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08 Oct 2014

Italia: procedimento amministrativo incostituzionale sul diritto d’autore?

By Heini Järvinen

Read this article in English here: https://edri.org/italy-admin-copyright-enforcement-unconstitutional

Il 26 Settembre 2014, un tribunale amministrativo italiano ha rinviato la questione relativa alla costituzionalità del procedimento amministrativo previsto dal nuovo Regolamento sulla violazione del diritto d’autore online alla Corte Costituzionale Italiana.

Il Regolamento sulla Violazione del Diritto d’Autore Online é entrato in vigore il 1° aprile 2014. Questo permette all’Autorità per le Garanzie nelle Comunicazioni (AGCOM) di esigere, attraverso un procedimento amministrativo, il blocco dell’accesso ai siti web che ospitano materiali che violano il diritto d’autore. Il blocco o la rimozione ha effetto entro cinque giorni (o 72 ore, nelle procedure accelerate) dal ricevimento del reclamo. Già dalla sua stesura, la costituzionalità del Regolamento é stata ripetutamente messa in discussione dal mondo accademico e dalla società civile italiana.

All’inizio del 2014, l’Open Media Coalition (OMC), un gruppo di organizzazioni non governative italiane, ha intentato una causa per contestare la validità del Regolamento. Il 26 settembre, il Tribunale Amministrativo Regionale del Lazio (TAR) ha posto gli atti del caso in attesa di giudizio ed ha rinviato il caso alla Corte Costituzionale Italiana chiedendo se gli ordini di blocco emessi da AGCOM siano compatibili con i principi costituzionali quali la libertà di espressione, la libertà economica e di proporzionalità.

Il TAR ha inoltre messo in dubbio il sistema delle procedure di notice and takedown ed ha chiesto alla Corte Costituzionale di esaminare se le disposizioni europee che servono da base legale al Regolamento, permettendo l’esecuzione amministrativa delle violazioni del diritto d’autore online, siano incostituzionali.

Il TAR ha osservato che:

“Il “doppio binario” amministrativo e giudiziario, previsto dalle Direttive europee a cui AGCOM fa riferimento, deve essere valutato considerando la necessità che le limitazioni imposte alle comunicazioni via internet al fine di tutelare il diritto d’autore, dovrebbero essere bilanciate da altri diritti tutelati dal diritto europeo, come il principio di proporzionalità.

Tuttavia, tali limitazioni dovrebbero essere soggette a revisione giudiziaria preliminare. In ogni caso, occorre ricordare che l’attuazione di tali direttive nel sistema giuridico italiano non puo’ compromettere la tutela prevista dalla nostra Costituzione ad altri diritti fondamentali potenzialmente in conflitto.”

La Corte Costituzionale risponderà in via pregiudiziale, ma ci vorranno almeno due anni. Dato che il TAR non ha sospeso il Regolamento, si prevede che AGCOM continuerà ad attuarlo fino a quando la risposta della Corte Costituzionale arriverà a chiarire la situazione. “E’ assurdo che venga ordinato il blocco di interi siti web sulla base di un Regolamento sospettato di essere incostituzionale” ha dichiarato Guido Scorza, rappresentante dell’OMC.

La Corte Costituzionale Italiana deciderà se il procedimento amministrativo di violazione del diritto d’autore on line é incostituzionale (solo in inglese, 28.09.2014)
http://cyberlaw.stanford.edu/blog/2014/09/italian-constitutional-court-decide-whether-administrative-enforcement-online-copyright

L’Autorità per le Garanzie nelle Comunicazioni italiana approva il procedimento amministrativo sulla violazione del diritto d’autore online (solo in inglese, 17.12.2013)
https://cyberlaw.stanford.edu/blog/2013/12/italian-communication-authority-approves-administrative-enforcement-online-copyright

Il regolamento AGCOM in materia di tutela del diritto d’autore sulle reti di comunicazione elettronica:
http://www.agcom.it/documentazione/documento?p_p_auth=fLw7zRht&p_p_id=101_INSTANCE_kidx9GUnIodu&p_p_lifecycle=0&p_p_col_id=column-1&p_p_col_count=1&_101_INSTANCE_kidx9GUnIodu_struts_action=%2Fasset_publisher%2Fview_content&_101_INSTANCE_kidx9GUnIodu_assetEntryId=771920&_101_INSTANCE_kidx9GUnIodu_type=document

Il diritto d’autore online, AGCOM si fermi e ascolti la lezione di Parigi (30.09.2014)
http://www.ilfattoquotidiano.it/2014/09/30/diritto-dautore-online-agcom-si-fermi-e-ascolti-la-lezione-di-parigi/1137954/

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08 Oct 2014

Italy: Administrative copyright enforcement unconstitutional?

By Heini Järvinen

Leggi l’articolo in italiano qui: https://edri.org/italia-procedimento-amministrativo-incostituzionale-sul-diritto-d-autore

On 26 September 2014, an Italian regional administrative tribunal referred a question regarding the constitutionality of the administrative enforcement procedures foreseen by a new regulation on online copyright infringement to the Italian Constitutional Court.

The Regulation on Online Copyright Infringement entered into force on 1 April 2014. It allows the Italian Communication Authority (AGCOM) to demand that internet access companies block access to websites hosting allegedly copyright infringing materials, following a short administrative procedure. The blocking or removal takes effect within five days (or 72 hours, in expedited proceedings) from the receipt of the complaint. Even while the Regulation was being drafted, its constitutionality was repeatedly questioned by Italian civil society and academics.

Earlier in 2014, the Open Media Coalition (OMC), a group of Italian non-governmental organisations, filed a lawsuit that challenged the validity of the Regulation. On 26 September, the Regional Administrative Tribunal of Lazio (TAR) placed the proceedings of the case on hold, and referred the case to the Italian Constitutional Court. It asked if blocking orders issued by AGCOM are compatible with constitutional principles, such as freedom of expression, economic freedom and proportionality.

The TAR also questioned the constitutionality of the entire notice and take down system, and asked the Constitutional Court to review whether the European provisions which serve as the legal basis for the regulation, allowing the administrative enforcement of online copyright infringements, are unconstitutional.

The TAR noted (unofficial translation):

“The “double track,” administrative and judicial, provided for by the European Directives that AGCOM referred to, should be assessed by taking into consideration the necessity that the limitations imposed on internet communications in order to protect copyright should be balanced with other rights protected by European law, such as the principle of proportionality. However, those limitations should be subject to a preliminary judicial review. In any event, it should be borne in mind that the implementation of those Directives in the Italian legal system may not undermine the protection provided by our Constitution to other potentially conflicting fundamental rights.”

The Constitutional Court will give the answer to the question referred to it, but may take up to two years. As the TAR did not suspended the regulation, it is expected that AGCOM will continue to implement it until the answer from the Constitutional Court clarifies the situation. “It is absurd that entire websites are ordered to be blocked on the basis of a Regulation that is suspected to be unconstitutional,” stated Guido Scorza, representative of the OMC.

Italian Constitutional Court to decide whether administrative enforcement of online copyright infringement is constitutional (28.09.2014)
http://cyberlaw.stanford.edu/blog/2014/09/italian-constitutional-court-decide-whether-administrative-enforcement-online-copyright

Italian communication authority approves administrative enforcement of online copyright infringement (17.12.2013)
https://cyberlaw.stanford.edu/blog/2013/12/italian-communication-authority-approves-administrative-enforcement-online-copyright

AGCOM regulation on online copyright infringement (only in Italian)
http://www.agcom.it/documentazione/documento?p_p_auth=fLw7zRht&p_p_id=101_INSTANCE_kidx9GUnIodu&p_p_lifecycle=0&p_p_col_id=column-1&p_p_col_count=1&_101_INSTANCE_kidx9GUnIodu_struts_action=%2Fasset_publisher%2Fview_content&_101_INSTANCE_kidx9GUnIodu_assetEntryId=771920&_101_INSTANCE_kidx9GUnIodu_type=document

Copyright online, stop and listen to the lecture of Paris, AGCOM (only in Italian, 30.09.2014)
http://www.ilfattoquotidiano.it/2014/09/30/diritto-dautore-online-agcom-si-fermi-e-ascolti-la-lezione-di-parigi/1137954/

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08 Oct 2014

Finland: Complaints about the copyright law drafting procedure

By Heini Järvinen

An update to the copyright law is being prepared in the Copyright Commission of the Ministry of Education and Culture in Finland. To affect the outcome of the preparations, and help correcting excessive interpretations of the current copyright laws, a citizens’ initiative “Common Sense For Copyright” was launched by the Open Ministry, a non-profit organisation mobilising citizens initiatives. The initiative gathered the support of over 50 000 citizens, and was submitted to the Parliament in November 2013.

On 1 October 2014, EDRi-member Electronic Frontier Finland (Effi), the Finnish Pirate Party and the Open Ministry submitted complaints to the Chancellor of Justice regarding the manner in which the Copyright Commission has proceeded with the process of preparing the law. The complaints state that the Ministry of Education and Culture has been drafting the new copyright law in secret, even thought the Finnish freedom of information act obliges it to keep citizens informed not only on the final results, but also on its ongoing work. The complaints also point out that the wording and planned criteria for web blocking and requests for personal data of web users have not been available. Furthermore, the complaints argue that the lack of transparency is not unique to this specific case, but it seems to be a commonly used method to prevent a constructive, open dialogue with all the stakeholders, and to complicate the participation of the civil society to the lawmaking process.

“During the preparation of the draft law, the Ministry of Education and Culture organised hearings to which civil society representatives were invited. However,ministries are also obliged to request written statements on the finalised draft law. This has not been done,” reminds Joonas Pekkanen, representative of the citizens’ initiative. “According to the information circulating in the media, there are also provisions included in the draft law, such as so called “must carry” provision, that have not been announced publicly, and of which no information is available on the website of the Ministry.”

The processing of the citizens’ initiative was scheduled to be terminated in the meeting of the Education and Culture Committee on 2 October 2014. However, the discussion was interrupted and the decision postponed to the next meeting. On 8 October, the Committee concluded the handling of the initiative, as expected. In its report, the Committee notes that the initiative suggests several ambitious amendments, but that it considers it impossible to propose, based on the initiative, even partial changes to the existing copyright law. The report states that the initiative includes internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation. However, the Committee admits the obvious need for finding solutions to adapt the copyright legislation to respond to the needs of the new digital environment.

The full house of the parliament is expected to have the vote on the initiative next week. It’s unlikely but still possible that certain parts of the initiative will be accepted.

Three complaints to the Chancellor of Justice about the secrecy of the preparations of the new copyright law (only in Finnish, 01.10.2014)
http://yle.fi/uutiset/kolme_kantelua_oikeuskanslerille_tekijanoikeuslain_valmistelun_salailusta/7501924

A complaint about the secrecy of the preparations of the copyright law submitted to the Chancellor of Justice (only in Finnish, 01.10.2014)
http://www.hs.fi/kotimaa/a1412128353419

A complaint about the actions of the Education and Culture Committee to the Chancellor of Justice (only in Finnish, 01.10.2014)
http://www.verkkouutiset.fi/kotimaa/kantelu_avoin_ministerio-26194

Minutes of the meeting of the Education and Culture Committee on 2 October 2014 (only in Finnish, 02.10.2014)
http://www.eduskunta.fi/faktatmp/utatmp/akxtmp/sivp_62_2014_p.shtml

Minutes of the meeting of the Education and Culture Committee on 8 October 2014 (only in Finnish, 08.10.2014)
http://www.eduskunta.fi/faktatmp/utatmp/akxtmp/sivp_65_2014_p.shtml

Report of the Copyright Commission of the Ministry of Education and Culture concerning the citizens’ initiative “Common Sense For Copyright” (only in Finnish, 08.10.2014)
http://www.eduskunta.fi/faktatmp/utatmp/akxtmp/sivm_9_2014_p.shtml

EDRi-gram: Finnish copyright initiative: Unbalanced expert hearings (10.09.2014)
http://edri.org/finnish-copyright-initiative-unbalanced-expert-hearings/

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08 Oct 2014

UK format shifting and parody copyright laws come into force

By Guest author

On 1 October 2014, new copyright regulations adding exceptions for personal copying, parody, and quotation came into force in the UK.

The personal copying exception allows copying of purchased media for private use. This includes format shifting and backups. The exception doesn’t cover making copies for friends, family or making copies of media you do not own or have acquired without the copyright holder’s permission. You can store personal copies on any device you own but you can’t legally give other people access to copies you make. The legislation allows individuals to apply to the Secretary of State if they want to remove the Digital Rights Management (DRM) access control, but this kind of provision – which already existed in UK law – has never been properly tested.

The exception has generated a lot of discussion because it does not involve a compensation scheme for rights holders. European copyright law has provisions for member states to implement private copy exceptions, but it adds that rights holders should be compensated for any losses. In many countries this takes the shape of a “blank media tax”, a levy on media such as CDs and hard drives. The UK government has argued that the exception is framed in very narrow terms, and private copy is already happening anyway and built into existing pricing structures. Therefore no additional harms to rights holders will arise that would require compensation. Predictably, rights holders do not agree and it is possible the exception will be challenged.

The new parody exception allows people to use copyright material without permission from the owner. But the exception is framed under the narrow terms of “fair dealing”, which complicates the use of materials where it is hard not to ”reproduce a substantial part”, such as images. The moral rights of the author – however narrow they may be in UK law – are unaffected.

The Intellectual Property Office, an official government body, gives these examples of how the exception could be used. “A comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.”

Major reform of intellectual property comes into force (30.09.2014)
https://www.gov.uk/government/news/major-reform-of-intellectual-property-comes-into-force

Exceptions to copyright
https://www.gov.uk/exceptions-to-copyright

Victory: format shifting and parody clear last hurdle (30.06.2014)
https://www.openrightsgroup.org/blog/2014/victory-format-shifting-and-parody-clear-last-hurdle

The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014
http://www.legislation.gov.uk/uksi/2014/2356/pdfs/uksi_20142356_en.pdf

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014
http://www.legislation.gov.uk/uksi/2014/2361/pdfs/uksi_20142361_en.pdf

(Contribution by Ed Paton-Williams and Javier Ruiz, EDRi-member Open Rights Group, UK)

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08 Oct 2014

Summary of the Commissioners-designate hearings

By Guest author

Between 29 September and 7 October the hearings of the Commissioners-designate in the European Parliament took place. This is a brief summary of the six hearings when the Commissioners-designate were answering to the MEPs’ questions regarding digital rights, privacy issues and trade agreements.

Guenther Oettinger (Germany) is the nominee for the Digital Economy and Society portfolio. Cecilia Malmström (Sweden) has been nominated as a Commissioner-designate for trade. Dimitris Avramopoulos (Greece) is the Commissioner-designate for the Migration and Home affairs. Věra Jourová (Czech republic) is nominated for the position of a Commissioner for Justice, Consumers and Gender Equality. Andrus Ansip (Estonia) has been assigned the portfolio of vice-president for digital single market. Frans Timmermans (Netherlands) will be the First Vice-President and Commissioner in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

Guenther Oettinger was asked about the steps needed to successfully deal with cloud computing and big data. He answered that we need EU legislation for cloud computing. On the issue of the “right to be forgotten”, the data retention and data processing, he stuck rigidly to existing Commission policy, saying that data should not be permanently stored, people should have a right to access the data stored about them, and that the “right to be forgotten” represented an additional protection. He considers the “right to be forgotten” as a fundamental right. His headlined-grabbing moment was calling the celebrities who had used cloud computing for their sensitive data “dumb”, and praising cloud computing for its financial and environmental efficiency and its ability to offer “tailored products and services to consumers“.

Cecilia Malmström indicated in her opening speech that the Transatlantic Trade and Investment Partnership (TTIP) is the most important challenge ahead. Investor-State Dispute Settlement (ISDS) in TTIP was extensively debated in the hearing, Ms Malmström answered that both negotiating sides were striving for an ambitious agreement including ISDS. In her another reply concerning ISDS she expressed that the ISDS would not be necessarily included in TTIP but that the Comprehensive Economic and Trade Agreement (CETA) would fall apart if ISDS was removed. With trademark evasiveness, she was firmly in support of ISDS, but confirmed that she was open to not supporting it in TTIP. Ms Malmström was also asked about her secret discussion with the US government about an unpublished draft of EU’s Data Protection Regulation, due to an e-mail that was published by EDRi-member Access. In her reply, she rejected the authenticity of the “leaked e-mail” (obtained under a US freedom of information request), the authenticity of which she was subsequently forced to publicly recognise.

Dimitris Avramopoulos answered to the European Parliament questionnaire regarding the implementation of the CJEU judgment on Data Retention Directive as followed: “In the current absence of EU legislation obliging Member States to require data retention, Member States can still establish or maintain national data retention legislation in compliance with the so-called e-Privacy Directive (Directive 2002/58/EC) and in accordance with the general principles of Union law, including fundamental rights, as well as their own constitutional principles”. The reference to the e-Privacy Directive is significant, because it means that the Commissioner Delegate is prepared to defend the position that data retention still falls under the EU legal framework. Mr Avramopoulos faced questions from MEPs regarding the validity of Passenger Name Record (PNR) Agreements after the Court’s ruling on Data Retention Directive. He replied that the Court ruling is the prerequisite for all the coming policies. In Europe, however, the new policies are to be adopted which will be valid and should be implemented horizontally.

Věra Jourová stated that among her priorities belong the swift adoption of a modern data protection reform within the first six months of her mandate. Regarding the questions about the “Umbrella agreement” (on law enforcement data exchange) and the Safe Harbor (on general rules for exchange of data) agreements with the USA, she stressed that it is necessary to restore trust between EU and US and that the Safe Harbour agreement must be really safe. She promised to analyse these issues and stated that she is always strongly in favor of the privacy protection and the data protection.

Andrus Ansip is going to focus on data protection, telecoms regulation, cyber-security, maintaining a fair level-playing field for all companies, e-commerce and e-government. He said that Europe doesn’t have a Single Market ready for the digital age, but it is important that we should not regulate everything. He promised to look at the copyright reform, and to reduce barriers to cross-border trade in the Single Market online. He also promised the introduction of eInvoices and eProcurement in the Commission by 2015, as well as eSignatures by the end of his mandate. Regarding the Safe Harbour agreement, Mr Ansip said that the changes need to be implemented. He also went on stating that the national security exception to the Safe Harbour rules is concerning and if there is no satisfying results in negotiations with the US in this regard, then suspension of the agreement might be the option. He also spoke out against geo-blocking of online content.

Frans Timmermans gave a strong commitment to ensuring respect for fundamental rights. Going beyond the position of the very active and ambitious ex-Commissioner for Fundamental Rights.He also promised a mandatory lobbyist register. Whether he will be able to use his stated views on transparency and democracy to help overturn the outgoing Commission’s dreadful record on access to documents remains to be seen.

Written responses to European Parliament questionnaire:

Guenther Oettinger: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-oettinger_en.pdf

Cecilia Malmström: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-malmstrom_en.pdf

Dimitris Avramopoulos: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-avramopoulos_en.pdf

Věra Jourová: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-jourova_en.pdf

Andrus Ansip: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-ansip_en.pdf

Frans Timmermans: http://ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-timmermans_en.pdf

(Contribution by Angela Sobolciakova, EDRi intern)

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08 Oct 2014

Despite compromising document, Malmström is here to stay

By Guest author

On 29 September the public hearing on Cecilia Malmström, the EU Commissioner-designate for Trade took place. The day before, Der Spiegel published an article revealing an email exchange indicating that Malmström and/or her cabinet had been covertly working with the US at an early stage in the development of the European Commission’s General Proposal for Data Protection Regulation – even before a draft had been officially communicated to any elected European politician.

According to the document in question, Malmström’s private office was subverting data protection reform from within the Commission, sharing with the US information about internal procedures and appropriate times to push for the publication of a US lobbying paper. The claims were brought up three times by Members of the European Parliament (MEP) during the hearing. Malström initially dismissed the claims as “false allegations” or “lies” based on “leaked emails,” even though the document in question had been acquired by Access through a formal Freedom of Information Act request. The morning after the hearing, Access sent an open letter to Malmström asking the Commissioner-designate to clarify her stance on the authenticity of the document. In response, she recognised the document as legitimate, but didn’t address its implications or acknowledge the need for an investigation. Her relaxed approach to evidence that, at the very least, one of her most senior staff was conspiring against the European Commission is baffling.

The content of this email raises serious concerns regarding Malmström’s suitability as Trade Commissioner. As Home Affairs Commissioner, she had already curtailed an investigation into the US’s unlawful usage of the SWIFT banking database as part of the Terrorist Finance Tracking Program. After it was made explicit that data pulled by the US was being used for coercion outside of terrorist investigations (like blocking a Germany-to-Cuba private transaction), the Parliament called for an inquiry; Malmström halted the probe based only on “written reassurance” by the US that the data was used for legitimate purposes. As Trade Commissioner, she would be in charge of the Transatlantic Trade and Investment Partnership (TTIP) negotiations, an already controversial and completely non-transparent process. Potentially the world’s biggest trade agreement, the TTIP could likewise impact multiple industries and strongly affect the rights of the EU citizens. In this context, concerns about Malmström’s extreme deference to the US is frightening.

Despite those concerns, after receiving a letter from the future Commissioner asserting that she had never shared information with the US during the development of the Data Protection Regulation and that “to her knowledge” no-one in her cabinet did either, the International Trade Committee of the European Parliament decided to confirm Malmström as Commissioner for Trade on 30 September.

Response to Access’ Freedom of Information Act request
https://www.accessnow.org/page/-/docs/foia/JN656%20–%20Released%20to%20Requester.pdf

Big brother’s little helper inside the European Commission (27.09.2014)
https://www.accessnow.org/blog/2014/09/27/big-brothers-little-helper-inside-the-european-commission

Malmstrom’s response to the INTA committee (30.09.2014)
https://www.accessnow.org/page/-/Commissioner%20Malmstr%C3%B6m%20letter%20to%20the%20INTA%20Committee.PDF

Access’ open letter to Commissioner-designate for Trade, Cecilia Malmström (30.09.2014)
https://www.accessnow.org/page/-/docs/Open_letter_to_Commissioner_Malmstrm.pdf

Malmström’s answer to Access’ open letter (30.09.2014)
http://ec.europa.eu/carol/index-iframe.cfm?fuseaction=download&documentId=090166e59a03255c&title=reply_to%20access.pdf

S&Ds accept Malmström nomination but call on Juncker to clarify his stand on ISDS (30.09.2014)
http://www.socialistsanddemocrats.eu/newsroom/sds-accept-malmstr%C3%B6m-nomination-call-juncker-clarify-his-stand-isds

(Contribution by Alix Ladent, EDRi-member Access, International)

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08 Oct 2014

Romania: The aftermath of the second CCR data retention ruling

By Guest author

As previously reported in the EDRi-gram, the Romanian Constitutional Court (CCR) ruled in its decision no. 440 on 8 July 2014 that the second Romanian data retention law (no. 82/2012) was not constitutional. The full reasoning for this was published in the Official Journal on 4 September 2014 in Romanian. EDRi-member ApTI is working on the translation of the text, and an English version will follow soon.

The first data retention law (298/2008) was declared unconstitutional by the CCR decision 1258/2009. The case of the second data retention law was put on the agenda of the CCR after two judges from two different lower courts (from the towns of Targoviste and Constanta) questioned ex officio whether the second Romanian data retention law 82/2012 was unconstitutional. The second data retention law could not be challenged directly in front of the CCR because of a political decision that the measure was a major obligation from the EU.

The reasoning of the decision declaring the second data retention law unconstitutional is based on the previous decision of the CCR, but also follows closely the ECJ decision from 8 April 2014 that nullified the Data retention Directive. It also quotes the similar decisions from Constitutional Courts of Germany, Czech Republic and Bulgaria.

There are at least three novelties compared to the 2009 data retention decision of the CCR that need to be mentioned:

Firstly the new CCR decision states clearly that access to the retained data by the secret services must be made only with a judicial approval. The judicial approval is seen as a guarantee of an efficient protection of retained data against any risk of abuse. The lack of this judicial approval (see paragraph 63-67 of the decision) is a breach of the right to privacy, as enshrined in the Romanian Constitution. This has been one of the key issues in the debate in the past, at least from a civil society standpoint – and, until now, the secret services had unlimited access to all retained data, without any real restrictions.

Secondly, CCR follows closely the ECJ decision on proportionality issues and rules that the first step – retaining and storing the data – is not, of itself, a breach of the right to privacy, as the Romanian Constitution does not forbid “the preventive storing, without a specific justification, of traffic and location data”. However the access to such data and its usage must be proportionate and this is where the Romanian law fails to meet its purpose (see paragraph 58-61 of the decision).

Thirdly, the CCR decision does not oblige the telecom companies and Internet Service Providers (ISP) to delete the retained data, but they have an obligation not to collect it any more. The ruling only limits the access of judicial authorities and secret services until a new law that meets the necessary safeguards is in place. However, the ruling goes even further by prohibiting the access of judicial authorities and secret services to data retained even for billing and interconnection. (see paragraph 78-80 of the decision). The CCR declared as constitutional the text of the Penal Procedural Code (art 152), which mandates a judicial approval for access to retained data, but just considered it “inapplicable” until a new data retention law will be in place.

The last point was actually an open invitation to adopt a new data retention law, but – as already reported in the EDRi-gram – it triggered a lot of critical comments from secret services and the prosecutors’ office, who said they are now in a “legal vacuum”.

Up until this point the authorities haven’t publicly announced any details regarding a new data retention law, but it is widely suspected that they are working on drafting it behind closed doors. A new data retention law will most probably be back on the agenda very soon. Whether lessons will be learned, both regarding the need for meaningful safeguards and the need for a public debate will be seen.

Full CCR decision 440/2014 (only in Romanian, 04.09.2014)
http://privacy.apti.ro/decizia-curtii-constitutionale-date-trafic/

EDRi-gram: Romanian Parliament adopts the data retention law. Again. (23.05.2012)
https://edri.org/edrigramnumber10-10romanian-parliament-adopts-data-retention-law-again/

EDRi-gram: Romania: Mandatory prepaid SIM registration ruled unconstitutional (24.09.2014)
https://edri.org/romania-mandatory-prepaid-sim-registration-ruled-unconstitutional/

EDRi-gram: Romanian NGOs demand stopping data retention in Europe (26.01.2011)
https://edri.org/edrigramnumber9-2data-retention-romania-ngo-petition/

(Contribution by Bogdan Manolea, EDRi-member ApTI, Romania)

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08 Oct 2014

Turkey: Constitutional Court overturns Internet law amendment

By Heini Järvinen

On 8 September, the Turkish Government passed an amendment to the existing Internet law (#5651). On 2 October, however, Turkey’s Constitutional Court annulled the most crucial parts of the amendment.

The amendment that was passed “aims to protect the dignity and privacy of individuals who become victims of defamation on the Internet.” It provided a legal basis for blocking of web sites to protect “national security or public order.” The amendment allowed the Turkish Telecommunications Authority (TIB) to block any websites without court order, and to collect and store all user logs from the Internet Service Providers (ISPs).

The law #5651 was mainly used for as a legal basis for blocking of the web sites that contain material about alleged corruption in the highest echelons of politics and alleged relationships of the government with fundamentalist organisations in Syria and Iraq.
The law #5651 has been recently used as a legal basis for blocking sites which contained recordings that appeared to indicate the existence of such alleged corruption and alleged relationships.

On 2 October, the Constitutional Court overturned the parts of the amendment that granted the TIB the power to block websites without a court order and the collection of user logs. Under the new ruling, ISPs will no longer have to block websites or remove contents within four hours of a request by the TIB. The websites can only be blocked upon a court order, and the TIB will not be able to monitor users’ websites visits.

In a meeting with foreign journalists, President Recep Tayyip Erdoğan responded to the annulment of the amendment with the statement:

I am increasingly against the Internet every day.

Turkey’s top court annuls part of law tightening Internet controls -media (02.10.2014)
http://uk.reuters.com/article/2014/10/02/uk-turkey-internet-idUKKCN0HR20B20141002

Top court overturns law tightening Turkey’s Internet controls (03.10.2014)
http://www.rappler.com/world/regions/europe/70888-court-overturns-law-turkey-internet-control

Top court overturns law tightening Turkey’s Internet controls (03.10.2014)
https://sg.news.yahoo.com/top-court-overturns-law-tightening-turkeys-internet-controls-223437007.html

Turkey’s leaders defend press freedom record but agree to address delegation’s concerns
https://www.cpj.org/2014/10/turkeys-leaders-defend-press-freedom-record-but-ag.php

Turkish court halts telecoms mandate to block Internet (02.10.2014)
http://www.aa.com.tr/en/news/398908–turkish-court-halts-telecoms-mandate-to-block-internet

Turkish Constitutional Court strips Internet authority of right to close websites (02.10.2014)
http://www.hurriyetdailynews.com/turkish-constitutional-court-strips-internet-authority-of-right-to-close-websites.aspx?pageID=238&nID=72479&NewsCatID=339

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01 Oct 2014

Net neutrality: NGOs and industry join forces in an open letter to EU ministers

By Kirsten Fiedler

Today, EDRi together with several NGOs, consumer groups and industry representatives sent an open letter to the Council of the European Union, calling for Telecoms ministers to support strong net neutrality rules in the EU. The Council is currently reviewing the proposal of the Telecoms Single Market Regulation, voted on by the European Parliament in April.

The European Parliament took a major step to protecting the open internet in Europe and to setting a global standard for online freedoms. Despite fierce lobbying from a coalition of the European Commission and former monopoly telecoms operators, Parliamentarians have supported the principle that the internet should remain open, competitive and democratic. It is now up to the Member States in the Council to confirm Europe’s support for a free and open Internet.

01102014-Letter-NN

 

The full letter and list of signatories can be found here (pdf) and below:

Dear Ambassadors,

Please make your relevant Ministers aware of this call to support net neutrality rules in the proposed Telecommunications Single Market Regulation.

We understand that you are currently involved in the Council of Ministers discussions on the proposed European Telecommunications Single Market Regulation. We, the undersigned organisations, are committed to an open, transparent and secure Internet and would like to call on you to support strong open Internet provisions as part of this proposal.

The open nature of the Internet is a key driver for innovation and economic efficiency and for fostering informed citizenship and plurality of opinions, creating a vital need for effective rules on net neutrality at EU level. Providing a clear EU regulatory framework on net neutrality would bring much needed certainty for sustained investment in innovative online content and applications that are available to everyone equally and boost consumers’ trust in the Internet and the digital society.

Net neutrality allows consumers and citizens across Europe to enjoy unfettered access to the Internet, regardless of the content, services and applications they use. This principle enables everyone, including innovators and entrepreneurs, to communicate with everyone, both in Europe and globally. Net neutrality is indispensable for innovation and growth, for the fundamental right to receive and impart information and for investment in next generation broadband.

We now call on the Council to take a strong stance on net neutrality.

Studies by regulators have unequivocally demonstrated that clear rules are necessary to halt discriminatory practices. Sound rules on net neutrality should include a clearly stated non-discrimination principle for Internet access providers. These rules allow Internet access providers to manage traffic but it should neither be prioritized nor discriminated against based on the content, services, applications, or devices that are being used. Internet access providers should clearly be able to offer customers internet access packages with different speeds and volumes – as long as they treat services and applications in a non-discriminatory manner.

Such rules should not prevent Internet access providers from offering “specialised services” if they wish, as long as they do not degrade or impair internet access services and are not discriminatory. National regulators must have both effective tools and clear obligations to prevent this from happening and should analyse and address each case on its merits.

EU-wide rules that include these principles will ensure that users, not Internet access providers, decide what applications and content they use, and enable entrepreneurs to market their services across the Union. It will be a significant step towards a true digital single market and avoid individual countries adopting different, perhaps incompatible legislation. Finally, it will demonstrate a commitment by Member States to respond to the demands of citizens, the European Parliament, and businesses across Europe.

The upcoming negotiations between Telecoms Ministers are an opportunity to send a clear signal to the other EU institutions and the European public that there is a political will to establish an EU framework which enables the EU to take up its role as a champion of the open Internet. We therefore call upon you to work towards the inclusion of robust net neutrality provisions in the Telecommunications Single Market Regulation proposal which would provide certainty for providers of innovative online content, applications and services, enhance transparency for end-users, and boost consumers trust in the Internet.

The contributors of this open letter are:

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