14 Feb 2018

EDRi’s Press Review 2017

By EDRi

During the past year, our work to defend citizens’ rights and freedoms online has gained an impressive visibility – we counted more than two hundred mentions! – in European and international media. Below, you can find our press review 2017.

JANUARY

09/01 Germany’s plan to fight fake news (The Christian Science Monitor)
10/01 Telecoms firms and internet services like WhatsApp face tougher new privacy rules (Euractiv.com)
10/01 Anti-Piracy: Can It Exist Without Censorship? (Digital Music News)
10/01 Public Domain Project Calls on EU to Abandon Piracy Filter Proposals (TorrentFreak)
11/01 Commission leaves the European Parliament with lots of work to do (eubusiness.com)
12/01 Briefing: Regulating privacy in the age of Big Data (New Europe)
14/01 Werbewirtschaft kritisiert EU-Pläne zur E-Privacy-Verordnung (Deutschlandfunk)
17/01 Yahoo! E-mail Scan Allegations May Test EU Data Transfers (Bloomberg Law: Privacy & Data Security)
24/01 CETA clears crucial hurdle in Parliament’s trade committee (Euractiv.com)
26/01 In Moldova, Civil Society Stands Up to ‘Big Brother’ Law (Global Voices)
30/01 Dänemark: Neues Gesetz könnte zu erheblicher Internetzensur führen (netzpolitik.org)


FEBRUARY

01/02 Türkçe İçeriğiyle Çocuklar İçin Dijital Mahremiyet Kılavuzu (Bigumigu)
01/02 Donald Trump: et maintenant, les données personnelles (Libération)
01/02 Letter on proposal to reform the EU Audiovisual Media Services (AVMS) Directive (Euractiv.com)
08/02 Anti-Whistleblower Provision Buried In Germany’s New Data Retention Law Challenged In The Courts (Techdirt)
13/02 NGOs sign appeal to MEPs to stop CETA (European Public Health Alliance)
13/02 Finissons-en définitivement avec CETA! (Le cercle des libéraux)
15/02 Voller Gummiparagraphen: EU-Anti-Terrorismus-Richtlinie gefährdet Grundrechte (netzpolitik.org)
15/02 MEPs approve EU-Canada trade deal (EurActiv)
16/02 Copyright power matrix (Politico.eu)
16/02 CETA ondermijnt recht op privacy en bescherming van gegevens (DeWereldMorgen.be)
17/02 Il Parlamento Europeo ha allargato il reato di terrorismo – Il Post (Nuova Resistenza)
20/02 Umstrittene europäische Antiterror-Richtlinie verabschiedet (domain-recht)
21/02 Windows 10 privacy settings still worrying European watchdogs (TechCrunch)
21/02 Windows 10 remoteness settings still worrying European watchdogs (Kalen2uTech)
22/02 European Watchdogs: Microsoft Sells User’s Personal Data To Third Parties, Collecting It Thru Windows 10 [REPORT] (University Herald)
23/02 Meet the innovators fighting for your right to privacy online (Wired UK)
28/02 MWC 2017: Wikipedia goes data-free in Iraq (BBC News)
28/02 They’re Your Fingerprints, But Has Someone Hacked A Database To Use That Information? (Huffington Post South Africa)
28/02 Truth Behind Advertising In A Digital Era (iPulse)
02 Joe McNamee “Our Open Web Fellow is helping us bring practical understanding to the political debate.” (Our stories from the Mozilla Network)
02 The 5G policy approach (Pan European Networks: Government – issue 21)


MARCH

01/03 US surveillance law may see no new protections for foreign targets (CSO Online)
06/03 France Sees Sharp Rise in Blocked and De-Listed Websites (Global Voices Online)
07/03 La UE busca blindar el negocio del copyright con una “máquina de censura” (Público)
07/03 EU Internet Advocates Launch Campaign to Stop Dangerous Copyright Filtering Proposal (EFF)
08/03 “Save The Meme” Campaign Protests EU’s Proposed Piracy Filters (TorrentFreak)
08/03 Privacy Shield : les défenseurs des libertés s’inquiètent (Politis)
08/03 ‘Sin memes no hay democracia’, la nueva campaña contra la reforma de la ley de copyright de la UE (Cadena SER)
16/03 Netizen Report: Azerbaijani Bloggers Targeted with Legal Threats, Spearphishing (Global Voices Online)
27/03 Urheberrechts-Richtlinie: Die EU will Copyright-Verstöße stärker filtern als Terror-Propaganda (netzpolitik.org)
28/03 Constituido el Grupo de Trabajo sobre Derechos Digitales de los Ciudadanos (La Moncloa)
28/03 Rechtsausschuss entschärft Oettingers EU-Leistungsschutzrecht (Telepolis)
28/03 El Minetad crea un grupo experto para adaptar los derechos fundamentales al entorno digital (TICbeat)
29/03 The Future of Free Speech, Trolls, Anonymity and Fake News Online (Pew Research Center’s Internet and American Life Project)
31/03 NAFTA Renegotiation Will Resurrect Failed TPP Proposals (EFF)


ARPIL

06/04 #PrivacyShield: MEPs alarmed by US developments that undermine privacy safeguards #DataProtection (EU Reporter)
13/04 1.477 Änderungsanträge: Im Europaparlament beginnt die heiße Phase der Urheberrechts-Richtlinie (netzpolitik.org)
17/04 Trump’s stance on internet privacy puts U.S.–E.U. pact on thin ice (The Daily Dot)
20/04 El seminari d’estiu de la Unipau analitzarà ‘l’ús del terror com a arma política’ entre el 6 i el 12 de juliol (cugat.cat)
20/04 Associação portuguesa de defesa dos direitos digitais avança (Computerworld Portugal)
21/04 Audiovisuelle Medien: Eine EU-Richtlinie wird Video-Anbieter zwingen, massenhaft legale Videos zu löschen (netzpolitik.org)
21/04 Studie des Europaparlaments: Staatstrojaner bergen erhebliche Risiken für das Grundrecht auf Privatsphäre (netzpolitik.org)
25/04 Meet the ‘Avengers’ of the privacy world: The ‘Digital Defenders’ (IAPP – The Privacy Advisor – International Association of Privacy Professionals)
25/04 Euro-Quote und Werbung: EU-Parlament will Videoportalen strengere Regeln setzen (Heise Newsticker)


MAY

10/05 Mit Technik zur Liebe (rbb|24)
10/05 Liebe in Zeiten der Tinderisierung (Wiener Zeitung)
11/05 Microsoft CEO: ‘It’s up to us to help stop dystopian nightmare of Orwell’s 1984’ (International Business Times UK)
11/05 Hakuna Metadata – Warum Metadaten und Browserverläufe mehr über uns verraten als oft vermutet (netzpolitik.org)
16/05 Druck auf Facebook wächst in mehreren Ländern (F.A.Z. PLUS)
18/05 Portabilité des contenus en ligne : première étape vers le marché unique du numérique (CUEJ.info)
18/05 Niederländisches Zero-Rating-Verbot gekippt – Frontalangriff gegen die Netzneutralität (netzpolitik.org)
19/05 Netzneutralität: Niederländisches Gericht kippt Verbot von Zero Rating (Heise Newsticker)
22/05 European Digital Rights – EDRi annual report (Contexte.com)
23/05 Dein Profil aus Twitter-Metadaten: ALTwitter (netzpolitik.org)
23/05 Netzwerkdurchsetzungsgesetz: Bürgerrechtler und Verbände schicken Brandbrief nach Brüssel (iX Magazin)
24/05 EC called on to oppose German hate speech law (Telecompaper (subscription))
25/05 Controversial EU rules could make life trickier for tech groups (Financial Times)
25/05 Controversial EU video rules may cause glitches for US tech giants (Irish Times)
29/05 More han 60 Groups, Companies Urge EU To Step Up Copyright Reform (Intellectual Property Watch)
30/05 Huge Coalition Protests EU Mandatory Piracy Filter Proposals (TorrentFreak)
30/05 ePrivacy: Was die EU dieses Jahr für Privatsphäre und Kommunikationsfreiheit tun kann (netzpolitik.org)
30/05 Pravo na nenavist’: Evrokomissiju prizyvajut za?itit’ svobodu slova ot nemeckogo zakonodatel’stva (RT)
31/05 DIGITAL: Copyright reform only briefly alluded to during Council (Bulletin Quotidien Europe 11798) (Agence Europe)
31/05 Crowdfunding campaign to buy stolen NSA hacking tools from Shadow Brokers (Network World)
31/05 Shadow Brokers : des hackers voulaient se cotiser pour récupérer les outils volés de la NSA (MAJ) (01net.com)


JUNE

01/06 While EU Copyright Protests Mount, the Proposals Get Even Worse (EFF)
07/06 re:publica 2017 – Digitale Liebe und analoges Risiko (netzpolitik.org)
14/06 Privacy-keen Germans push back against plans to ‘duplicate the US data chaos’ (ZDNet)
21/06 ePrivacy-Debatte: Konservativer EU-Abgeordneter vergleicht seine Kollegen mit iranischem Wächterrat (netzpolitik.org)
23/06 EU pressures firms to tackle online terrorism (EUobserver)
23/06 Wie man ein Imperium der Algorithmen beherrscht (netzpolitik.org)
23/06 Germany wants to fine Facebook over hate speech, raising fears of censorship (The Verge)
24/06 Kritik an Verknüpfung von Raubkopien und Terrorismus (Heise Newsticker)
26/06 Ljubye ograni?enija v messendžerah nedopustimy, s?itaet èkspert EDRi (ria.ru)
26/06 Agujeros en la privacidad de las comunicaciones pueden ser usados por terceros (Diario Digital Nuestro País)
28/06 Europäische Bürgerrechtler kritisieren Netzwerkdurchsetzungsgesetz (netzpolitik.org)
28/06 La justicia europea tumba el envío a Canadá de los datos de pasajeros aéreos (netzpolitik.org)
30/06 Germany passes controversial law to fine Facebook over hate speech (The Verge)
30/06 Mal eben den Rechtsstaat outsourcen (Zeit Online)
30/06 Facebook could now be fined $57m over hate speech (Mashable)
30/06 Germany passes controversial law to fine Facebook over hate speech (CNBC)
30/06 Haatbericht niet op tijd verwijderd? Techbedrijf in Duitsland riskeert boete van 50 miljoen euro (Volkskrant)
30/06 Germany tells social-media companies to erase hate — or face fines up to $57 million (Washington Post)
30/06 German Law Requires Companies To Swiftly Delete ‘Obviously Illegal’ User Content (Tom’s Hardware)


JULY

02/07 Facebook, Twitter Could Face Fines of $57 Mln for Failing to Remove Hate Speech (Netralnews)
02/07 Facebook reacts at Germany’s new law over hate speech (TechnoChops)
03/07 Germany Set To Fine Social Media Companies For Not Removing Hate Speech (GC Report)
04/07 Fines to guarantee open internet vary greatly within EU (EUobserver)
06/07 Etyka wed?ug Facebooka (Krytyka Polityczna)
06/07 Germany Passes Law to Fine Social Media Companies that Fail to Remove Hate Speech (Law Street Media)
10/07 Stalemate Continues in Negotiations Over European Copyright Filters (EFF)
12/07 Filtern, Sperren, halbgare Kompromisse: Erste EU-Ausschüsse haben über Urheberrecht abgestimmt (netzpolitik.org)
12/07 Zbli?a si? „podatek od linków” i antypirackie filtrowanie internetu? Unijna reforma zmierza w z?? stron? (Bezprawnik)
13/07 Social media: the Faustian deal (Euronews)
13/07 Intermediaries Could Be Made Liable In EU Copyright Legislation (Intellectual Property Watch)
14/07 Copyright votes in CULT and ITRE: Filtering, blocking & half-baked compromises (EU Business)
18/07 Serious concerns raised about EU Copyright reform (VPN Compare)
18/07 German social media law sparks protest (The Irish Times)
26/07 Top EU court says deal on sharing airline passenger names must be changed (The Irish Times)
26/07 Top EU court says deal on sharing airline passenger names must be changed (The Globe and Mail)
26/07 EU court’s blow to Canada deal marks new hurdle for data laws (Euractiv)
26/07 Top EU court says Canada air passenger data deal must be revised (Reuters)
26/07 EU defends airline data-sharing after court ruling (EU Observer)
26/07 Court grounds EU counterterrorism plan (Politico.eu)
26/07 EuGh-Urteil: Flugpassagierdaten-Abkommen zwischen EU und Kanada illegal (Euractiv)


AUGUST

02/08 e-Privacy Regulation: Good Intentions but a Lot of Work to Do (Foreword to issue 2/17 of the European Data Protection Law Review)
30/08 Joint Statement | Ten Demands for a progressive Trade Policy (European Public Health Alliance)


SEPTEMBER

06/09 EU Presidency Pushing Other Member States for Substantial Internet Surveillance (CircleID)
07/09 European Union Calls For Massive Internet Censorship (The Daily Caller)
08/09 EU pushes for indiscriminate internet surveillance in leaked anti-piracy plan (theinquirer.net)
08/09 Reality check: has Juncker delivered on his promises? (Euronews)
08/09 European Union Considering Intrusive Upload Filter as “Link Tax” Alternative (bleepingcomputer.com)
08/09 POLITICO Brussels Influence: Transparency kick-off (sort of) — Martin ‘No lobbying’ Selmayr — Soil savers (Politico)
08/09 EU anti-piracy plan would introduce internet surveillance and ‘ancillary copyright’, claim campaigners (Computing)
08/09 EU anti-piracy plan calls for Europe-wide ancillary copyright (Kit Guru)
11/09 The importance of Europeans sticking together to achieve a progressive Europe (Open Democracy)
11/09 La multa a Facebook podría haber sido hasta 20 veces mayor en 2018 (Público)
13/09 Kampagne: Öffentliches Geld, Öffentlicher Code (netzpolitik.org)
13/09 EU Copyright Reform Meets Resistance From Stakeholders, Some Governments (Intellectual Property Watch)
13/09 Brief: Software Paid For With Public Money Should Be Open Source, Groups Say (Intellectual Property Watch)
13/09 31 colectivos reclaman una legislación que obligue a las instituciones públicas a utilizar ‘software’ de código abierto (Cuatro)
13/09 Kampagne Public Code: Software für die Verwaltung soll frei sein (Heise Newsticker)
13/09 Nach Wahlsoftware-Debakel. Aktivisten fordern Transparenz bei staatlicher Software (Spiegel Online)
13/09 Freie Software: Wenn der Staat finanziert, dann Open Source (Computer Base)
13/09 PublicCode fordert Freigabe aller öffentlich finanzierten Software (Pro-Linux.de)
13/09 31 Organisationen fordern freie Software in der Verwaltung (golem.de)
13/09 31 colectivos reclaman una legislación que obligue a las instituciones públicas a utilizar ‘software’ de código abierto (La Vanguardia)
18/09 New legal tool on electronic evidence: Council of Europe welcomes civil society opinion (Council of Europe)
18/09 Cross-border access to data: Council of Europe submission (Digital Rights Watch)
19/09 This Is What NGOs Want on E-Evidence From the Council of Europe (Civil Liberties Union for Europe)
19/09 EU Clamping Down On Data Use For Marketing (The NonProfit Times)
19/09 Urheberrechtsreform: Estnische EU-Ratspräsidentschaft wirbt für Upload-Filter (netzpolitik.org)
21/09 The EU Suppressed a 300-Page Study That Found Piracy Doesn’t Harm Sales (Gizmodo)
21/09 EU Buried Its Own $400,000 Study Showing Unauthorized Downloads Have Almost No Effect On Sales (Techdirt)
22/09 EU paid for, then suppressed, study that says piracy doesn’t harm sales (Neowin)
22/09 Piratage : l’UE a caché une étude aux conclusions optimistes (Les Numeriques)
22/09 EU covers up study that reveals piracy doesn’t harm sales (Daily Sabah)
22/09 EU withheld a study that shows piracy doesn’t hurt sales (endgadget)
22/09 The EU found out that piracy doesn’t harm sales and tried to hide it (buzz.ie)
22/09 EC Diagnosed with © ‘Ostrich Syndrome’: Missing Study on Piracy (copybuzz)
22/09 European Union paid for, then suppressed, study that says piracy doesn’t harm sales (Hi-Tech Facts)
22/09 EU Report: Piracy Doesn’t Harm Sales (Hi Tech Beacon)
22/09 The EU Commission couldn’t prove piracy affects sales (Click Lancashire)
22/09 Piracy Doesn’t Harm Sales — EU Report (Newburgh Gazette)
22/09 The EU has suppressed a study that claimed that piracy does not harm sales (The Stopru)
22/09 The EU Suppressed a 300-Page Study That Found Piracy Doesn’t Harm Sales (Gizmodo India)
22/09 EU withheld a study that shows piracy doesn’t hurt sales (Yahoo! Finance)
23/09 EU withheld a study that shows piracy doesn’t hurt sales (Gears of Biz)
25/09 EU held back report that found piracy doesn’t harm music sales (M Magazine)
25/09Studie objednaná EU dokazuje, že mezi pirátstvím a prodejností není souvislost (oTechnice.cz)
25/09 “L’UE a ignoré une étude sur le piratage parce que ses conclusions ne respectaient pas son programme” (Express)
26/09 La Commission Européenne dissimule un rapport qui nie les liens entre piratage et baisse des ventes (Le Soir)
26/09 Kontroverse um Piraterie-Studie der EU-Kommission (Heise Newsticker)
26/09 Net Neutrality Reversal Will Harm Free Speech, International Groups Argue (MediaPost)
26/09 New International Open Letter Warns US Lawmakers over Net Neutrality Rollback (CommonDreams)
26/09 Wat er in het weggemoffelde EU-rapport over cyberpiraterij staat: dit mochten we niet weten (Newsmonkey)
27/09 IGF Austria: Fake-News, Meinungsfreiheit und Sicherheit (Futurezone.at)
28/09 EU wants tech firms to police the internet (EUobserver)
28/09 Commission’s position on tackling illegal content online is contradictory and dangerous for free speech (EUbusiness)
28/09 Illegale Inhalte im Netz: EU-Kommission setzt auf die vermeintliche Wunderwaffe „Upload-Filter“ (netzpolitik.org)
28/09 EU internet policing proposals spark free speech concerns (Deutsche Welle)
29/09 European Commission puts pressure on tech firms to tackle illegal content (Silicon Republic)
29/09 EU Proposes Take Down Stay Down Approach to Combat Online Piracy (TorrentFreak)
29/09 EDRi: Grenzübergreifender Datenaustausch muss mit Grundrechten vereinbar sein (netzpolitik.org)
29/09 European Commission backs takedown-and-stay-down for combating piracy online (Complete Music Update)
29/09 Europe’s digital future on the table at Tallinn summit (rfi.fr)
29/09 Europe’s online piracy crackdown is ‘dangerous for free speech’, activists claim (The Sun)
29/09 European Initiative Says Don’t Curb Objectionable Online Content, U.S. Action Unlikely (Corporate Counsel)
29/09 Europe’s digital future on the table at Tallinn summit (Radio France Internationale)


OCTOBER

02/10 EU internet policing proposals spark free speech concerns (DeathRattleSports.com)
02/10 CopyCamp Conference Discusses Fallacies Of EU Copyright Reform Amid Ideas For Copy Change (Intellectual Property Watch)
05/10 LIBE ePrivacy vote delayed; JURI, ITRE and EDPS weigh in (iapp)
05/10 EU fails to protect free speech online, again (Article 19)
11/10 Who’s afraid of… e-Privacy? (IFEX)
16/10 Over 50 Human Rights & Media Freedom NGOs ask EU to Delete Censorship Filter & to Stop © Madness (copybuzz)
16/10 56 Groups Call For Deletion Of Internet Filtering Provision In EU Copyright Proposal (Intellectual Property Watch)
16/10 Civil Society Groups Call for Deletion of Internet Filtering Provision in EU Copyright Proposal (CircleID)
16/10 57 rights groups back anti-Article 13 letter to the European Parliament (Gears of Biz)
16/10 57 rights groups back anti-Article 13 letter to the European Parliament (theinquirer.net)
16/10 Facebook als Hilfs-Sheriff: Kritik an Auslagerung der Rechtsdurchsetzung im Netz (Heise Newsticker)
17/10 Abandon Proactive Copyright Filters, Huge Coalition Tells EU Heavyweights (TorrentFreak)
17/10 Digital rights groups speak out against EU plan to scan online content (Engadget)
17/10 57 Organisationen fordern: Pflicht für Upload-Filter streichen (Initiative Urheberrecht)
17/10 Digital rights groups speak out against EU plan to scan online content (Yahoo! Finance)
18/10 EU encryption plans hope to stave off ‘backdoors’ (Politico.eu)
18/10 EFF wants ‘illegal’ EU copyright reform deleted (World Intellectual Property Review)
18/10 Bruxelles veut aider les États face aux défis du chiffrement (Contexte)
19/10 Now the digital rights groups write to the EU about safe harbour reform (Complete Music Update)
19/10 EU encryption plans hope to stave off ‘backdoors’ (Baltic Review)
19/10 EU justice committee passes amended ePrivacy directive (Telecompaper)
19/10 Hauchdünne Mehrheit für Kompromiss bei ePrivacy-Reform (netzpolitik.org)
19/10 Euro-parliamentarians say a clear “no” to the anti-privacy lobby (EU Business)
19/10 European lawmakers still hearing conflicting demands over safe harbor in Copyright Directive (RAIN News)
20/10 EU MEPs want stronger privacy rules for Internet-enabled communication services (Help Net Security)
21/10 ePrivacy: Die Lobbymacht der Datenindustrie (netzpolitik.org)
24/10 Sechs Gründe, warum die totlangweilig klingende ePrivacy-Verordnung für dich wichtig ist (netzpolitik.org)
25/10 ePrivacy: Morgen entscheidende Abstimmung über Vertraulichkeit der digitalen Kommunikation (netzpolitik.org)
26/10 How Europe fights fake news (Colombia Journalism Review)


NOVEMBER

10/11 Commission wants to extend law for police data access to the US (EurActive.com)
21/11 Urheberrechts-Richtlinie: Wenig LIBE für Uploadfilter im EU-Parlament (Netzpolitik.org)
28/11 What is net neutrality? (Channel 4 News)
30/11 November 2017 Open Letter on EU © Reform (copybuzz)


DECEMBER

10/12 Net Neutrality’s Holes in Europe May Offer Peek at Future in U.S. (The New York Times)
10/12 Net Neutrality’s Holes in Europe May Offer Peek at Future in U.S. (Latest News7)
11/12 Net neutrality, i paladini Usa temono un “pasticcio all’europea” (CorCom)
12/12 Net neutrality’s holes in Europe may offer a peek at the future in America (Pittsburgh Post-Gazette)
13/12 Want cheaper British car insurance? Mind how you shop (Business Insider UK)
18/12 EU-Zensurmaschine bei Urheberrechtsreform: Zurück zu den Fakten! (Netzpolitik.org)
19/12 French privacy watchdog tells Whatsapp to stop sharing data with Facebook (rfi)
19/12 EU chief responsible for combating ‘hate speech’ deletes ‘hate-filled’ Facebook account (Express)
21/12“Let’s not have democracy anymore, let’s have internet companies” (euroscope)
22/12 What does the repeal of net neutrality mean for development? (Devex)


EDRi’s Press Review 2016
https://edri.org/press-review-2016/

EDRi’s Press Review 2015
https://edri.org/edris-press-review-2015/

EDRi’s Press Review 2014
https://edri.org/edris-press-review-2014/

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13 Feb 2018

LEAK: European Commission’s reckless draft Recommendation on “illegal” content

By Joe McNamee

In September 2017, the European Commission adopted its widely criticisedCommunication on Illegal Online Content.” Now, already, due to political pressure and internal competition between various European Commission services, a new Commission proposal for a Recommendation on the same subject is close to being shared with the Council for unanimous support, albeit not being legally binding. A leaked draft can be found here.

On the basis of no new analyses, no new data and no new pressing issues to be addressed, the leaked draft Recommendation seeks to fully privatise the task of deciding what is acceptable online or not. The only protection for user rights like freedom of expression is an unenforceable hope that certain “adequate safeguards” will be put in place voluntarily by the companies. The draft reminds readers – twice – that the providers have “contractual freedom”, meaning that any such safeguards will be purely optional.

One of the hopes is that the providers will be transparent about the amount of “illegal content and other content” that they delete. The Commission does not even suggest that their aspirational safeguards should be applied to the legal “other content” it mentions. There is literally nothing in law nor practice that would require either EU Member States or the companies themselves to implement a single one of the safeguards listed.

The draft Recommendation highlights one type of content, “terrorist” material, to justify the chaotic proposals. Even though we already have a recent Terrorism Directive and a Europol Regulation dealing with the subject, the Commission seeks to defend its attack on freedom of expression, privacy and the rule of law by using the threat of terrorism. In reality, the repeated references to measures proposed to address copyright and “intellectual property rights” infringements gives an indication of the real driving force behind for such far-reaching measures.

Indeed, in relation to “terrorist content” (undefined, of course), the Commission explains that its proposals could be “complemented” “by certain recommendations”, which are not explained – although this may refer to the setting up of the national internet referral units, whose value has yet to be demonstrated. This, one imagines, is motivated by the need to defend the Commission’s aggressive stance for copyright (mandatory upload filters) compared with its more relaxed approach to alleged terrorist content. Indeed, the probability that the removals will disproportionately target legal content is demonstrated by the numerous references to content being removed on the basis of the companies’ terms of service.

This shows how much the Commission prioritises (in line with the demands of the copyright lobby) the removal of availability over the investigation of removed content. In reality, Member States are very keen on NOT receiving reports of the content being deleted – as proven by the fact that no statistics are kept about any investigations that result from reports generated by Europol’s “Internet Referral Unit” (IRU), according to the Commission itself.

What is worse, the Commission’s draft includes general references to respect of the Charter of Fundamental Rights of the European Union in relation to all of these “voluntary” measures (cf. Preamble, Paragraphs 14, 38 and 39 and Chapter 1, paragraph 1). On top of being very vague and unenforceable in practice, as the European Commission knows very well, the Charter only applies to measures implemented by the European Commission and to Member States applying EU law, NOT to measures that are imposed “voluntarily” by private companies. Even then, it fails to mention one of the most relevant articles of the Charter in this context, Article 52.

The draft Recommendation makes limp references to safeguards, such as counter-notices (to which the provider should give “due consideration”, whatever this may mean). Even here, the Commission only suggests counter-notice procedures for content that is deleted on the basis of illegality, not for content removed under terms of service. In addition, alternative dispute settlement is given preference over court legal proceedings with little explanation. Surprisingly and positively, there is a provision on evaluating the implementation of the measures. However, this is limited to:

  • raw data on the amount and speed of content removal (with no consideration given to the difference between content removed on the basis of terms of service rather than the law);
  • the amount of content removed by upload filters, (with no consideration given to whether the removals were justified or not);
  • safeguards implemented by either service providers or Member States (legal redress, transparency regarding removals of legal content, review processes for implemented measures, etc.);

The Commission proposes no measures to gather any data on the usefulness or possible counter-productive effects of any of these measures for the fight against illegal activity.

For what is worth, here is Article 52.1 of the Charter of Fundamental Rights of the European Union, with the parts that are not respected by the Commission’s Recommendation, either in spirit or due to lack of data, highlighted in red:

Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law [the Recommendation is based entirely on “voluntary” measures] and respect the essence of those rights and freedoms [the Recommendation includes references to deletion of content that is legal and has no review processes to assess its impact on rights and freedoms]. Subject to the principle of proportionality, limitations may be made only if they are necessary [despite the existence of multiple such projects on EU and national levels, the Commission has diligently avoided collecting data that indicates, let alone proves, necessity] and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others [despite the existence of various initiatives like the EU Internet Forum, no data has been collected to indicate necessity and proportionality].

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12 Feb 2018

Press release: EDRi celebrates 15th anniversary

By EDRi

Today, EDRi turns 15! We are proud to announce the anniversary of our formal registration as an NGO – an occasion for us to reflect on the achievements of the European digital rights movement, and imagine what the next 15 years might look like.

On 12 April, we will organise an anniversary celebration in Brussels. We will take this opportunity to honour and recognise those people who have been dedicating themselves and their work to protecting digital rights. Moreover, we’re asking individuals to join our cause and become regular donors to allow us to continue our passionate fight for their rights and freedoms.

EDRi has grown from a loose network of European organisations to a professional organisation supported by our valued members. Since 2003, the network’s activists, members, observers and donors have worked together to protect human rights in a quickly developing technological environment. We’ve grown the network from 10 member organisations to 35 members and 37 observers, our office to eight permanent staff and our supporters to around 300 individuals annually.

During our work of 15 years of defending digital rights in Europe, we are proud to look back on some major milestones and victories: In 2012, we ultimately played a key role in defeating the Anti-Counterfeiting Trade Agreement (ACTA) – which for the first time showed the power of the digital rights community. In 2015, after many years of hard work we successfully campaigned for an EU Regulation on net neutrality. Our campaign was completed when, with the support of over half a million citizens, we rallied to respond to a net neutrality consultation, leading to meaningful implementation guidelines for net neutrality in Europe. We also played a key role in the civil society efforts that led to the adoption of the EU’s General Data Protection Regulation (GDPR) in April 2016. Currently, our work mainly focuses on defending privacy in electronic communications (e-Privacy), fixing the broken copyright regime, and advocating for human rights in the rules that govern how law enforcement agencies can access personal data cross-borders.

Finally, our renowned fortnightly newsletter of digital rights in Europe, EDRi-gram, celebrated its 15-year existence this January with a re-publication of the very first edition.

Our annual reports:

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07 Feb 2018

EDRi’s “Brussels Exchange Programme” – turning theory into practice

By Modern Poland Foundation

As a European network of 35 digital civil rights NGOs, EDRi is encouraging its member organisations to get to know each other, and to coordinate their national level advocacy work and campaigning on digital rights. Another important aspect of EDRi’s work is reinforcing the members’ understanding of the European level decision-making, and facilitating the cooperation to have an impact at the EU level.

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As a staff member of an EDRi member organisation Modern Poland, I always wanted to have a good understanding how Brussels works and had a feeling that neither the EU law course I took during my studies nor observing the EU institutions from the distance brought me closer to realising this goal. It all changed after the EDRi Brussels exchange, in which I participated in November and December 2017. That was a wonderful opportunity to have a hands-on experience with the “Brussels bubble”, and I recommend it to everyone who seriously thinks about working in the digital rights policy area!

The Brussels exchange was a two-week crash course to EU advocacy work – full of challenging work at EDRi’s office in Brussels. My main interest is copyright policy, so during the exchange I personally participated in the daily routines of the policy team. It comprised of both back-office work, and meetings with various stakeholders and decision-makers, and it was some of the most fruitful, learning-by-doing experiences I have ever had! Specifically, it is one thing to read the official documents, and a completely different thing to talk about them with EDRi’s Joe McNamee and Diego Naranjo, who immediately connect the documents with the whole history of EU developments in the field and other information gathered during their years of following the EU institutions. This personal contact immediately resulted in my two guest contributions to the EDRi-gram– one about the implications of text and data mining (TDM) limitations on anti-plagiarism services, and the other about the threat of automatic censorship being introduced through a twisted interpretation of EU legal safeguards.

Spending time working closely together helped to plan some further collaboration in the longer run with the Brussels office. This would not have happened so efficiently without experiencing how the policy team works. Thus, I find the exchange a perfect tool for encouraging EDRi members to get more active and involved in the work at the EU level.

Moreover, it is one thing to participate in online consultations, and something completely different to talk about the process with people actually involved in it. My exchange has fortunately coincided with several meetings of the European Union Intellectual Property Office (EUIPO) Observatory working groups, in which EDRi is an active participant. The Observatory is researching issues such as “intellectual property” (IP) and startups or business models in Open Source. I was also very happy to learn more about EUIPO Observatory’s educational activities, as they have a lot in common with various educational projects run at the Modern Poland Foundation.

My stay was packed with meetings with representatives of organisations such as the European Bureau of Consumer Associations (BEUC) and the European association of collecting societies (GESAC), as well as private companies. In addition to this, I had an opportunity to meet with some EU officials, and discuss our concerns in relation to hot topics like upload filtering or ancillary rights. These were experiences of their own – very enlightening in terms of how people from various backgrounds think about copyright and what is their rationale. It was very empowering to learn that these people have time to meet amid their important work, and that they are actually very interested in hearing citizens’ opinions, and happy to share their own concerns.

Is anti-plagiarism software legal under EU Copyright legislation? (29.11.207)
https://edri.org/is-anti-plagiarism-software-legal-under-eu-copyright-legislation/

Commission claims that general monitoring is not general monitoring (10.01.2018)
https://edri.org/commission-claims-that-general-monitoring-is-not-general-monitoring/

(Contribution by Krzysztof Siewicz, EDRi member Modern Poland Foundation, Poland)

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07 Feb 2018

Chaos Communication Congress 2017

By Guillermo Peris

The 34th annual four-day hacker conference Chaos Communication Congress (34c3), organised by EDRi member Chaos Computer Club, took place in Leipzig, Germany on 27-30 December 2017. The congress offered lectures, workshops and other events on various topics related to information technology and its effects on the society.

For the first time, we also organised an assembly together with our friends at the Electronic Frontier Foundation (EFF), Privacy International, epicenter.works, Digitale Gesellschaft Switzerland, Forum InformatikerInnen für Frieden und gesellschaftliche Verantwortung (FIfF), Fitug, Gesellschaft für Freiheitsrechte (GFF), Hermes Center, Vrijschrift and the Free Software Foundation Europe (FSFE). The existence of the Rights&Freedoms cluster reflects a commensurate build-up in momentum among the global internet freedom community. As more and more people committed to upholding civil rights online, free expression and free open software these ideals and philosophies evolve to become more wide-reaching, inclusive, and effective.

The Rights&Freedoms stage covered many different topics – from open source software over security and privacy online to mass surveillance and current European digital rights issues. In case you missed some of the interesting talks, we have compiled a list of some of the available sessions from the Rights&Freedoms Cluster for you to catch up on.


Rights&Freedoms Stage

27 December 2017

19:00-20:00 – Jabber/XMPP: past, present and future (Daniel Gultsch)
Speaker notes
Video

21:00-22:00 – The many applications of digital certificates (Thomas Ruddy)
Slides

28 December 2017

13:00-14:00 – Take e-voting away from Europe (Hermes Center)
Slides

18:00-19:00 – Hacking with Wget (Hanno Böck)
Slides

29 December 2017

14:00-15:00 – Digital Anonymity for Whistleblowing (Hermes Center)
Slides

21:00-22:00 – Wie die flächendeckende Gesichtserkennung sich in unser Datenschutzgesetz eingeschlichen hat (Frank, Datenschutzraum e.V.)
Slides

30 December 2017

14:00-15:00 – Monitoring Government Surveillance Capabilities by means of Transparency tools (Hermes Center)
Slides

If you participated and would like your session to be included on the list, please send your slides or video recording (or a link to them) to guillermo.peris (at) edri.org.


Other interesting talks at the 34c3 by EDRi members & allies

Net Neutrality Enforcement in the EU (Thomas Lohninger, epicenter.works)
Video

Protecting Your Privacy at the Border (Kurt Opsahl and William Budington, EFF)
Video

Italy’s surveillance toolbox (Riccardo Coluccini, Hermes Center)
Video

Policing in the age of data exploitation (Eva Blum-Dumontet and Millie Wood, Privacy International)
Video

WTFrance: Decrypting French encryption law (Agnes and Okhin, La Quadrature du Net)
Video

OONI: Let’s Fight Internet Censorship, Together! (Arturo Filastò aka. hellais, OONI)
Video

Die Sprache der Überwacher (Thomas Lohninger, Werner Reiter and Angelika Adensamer, epicenter.works)
Video (German)

Der netzpolitische Wetterbericht (Markus Beckedahl, Netzpolitik)
Video (German)

Die göttliche Informatik (Rainer Rehak, Forum InformatikerInnen für Frieden und gesellschaftliche Verantwortung)
Video (German)

Netzpolitik in der Schweiz (Digitale Gesellschaft CH)
Video (German)

Die Sprache der Überwacher (Thomas Lohninger, Werner Reiter and Angelika Adensamer, epicenter.works)
Video (German)

All officially recorded sessions of the 34C3 can be found here.

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07 Feb 2018

Data protection – time for action

By Anne-Morgane Devriendt

On 24 January 2018, the European Commission (EC) published a Communication on the implementation of the General Data Protection Regulation (GDPR), entering into force on 25 May 2018: “Stronger protection, new opportunities”.

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The Communication describes the preparatory works by the Commission to help with the implementation of the GDPR and what the Commission plans to help Member States and companies to comply with the new data protection framework.

Most of the work at the EU level has been done by the group of Data Protection Authorities (the so-called Article 29 Working Party). It has been preparing guidelines, on the basis of extensive consultations and workshops with a variety of stakeholders. More work still needs to be done in order to ensure the effective implementation of the new rules.

Although the GDPR is a Regulation and therefore applies “as is” in all Member States, some legislation needs to be adapted to the new obligations set by the GDPR, especially regarding the flexibilities with which the “Regulective” can be implementedat Member States’ discretion, on automated decision making and transfer of personal data to third countries, among other things i. Ironically, while industry demanded harmonisation at the start of the legislative process, it spent most of the decision-making process demanding national flexibilities and exceptions, leading to the opposite outcome to the one it initially asked for. Sometimes, one is left with the impression that lobbyists are working to create work for themselves.

At the moment of publication of this Communication, just four months before the GDPR enters into force, only two out of 28 Member States (Austria and Germany) have finished this legislative preparation. It is also to be clarified how Member States will ensure that national Data Protection Authorities (DPAs) are given the means to fulfill their new functions as prescribed by the GDPR.

Finally, the Communication stresses that the core principles of data protection are not affected by the new Regulation As a result, few changes are needed from organisations, if they already comply with the existing Data Protection Directive. However, the Commission notes that citizens and small and medium-sized companies are not well informed about the provisions of the GDPR. It has launched guidelines on the new rules for business and rights for citizens.

One cannot help but wonder why neither Member States nor companies seem to be prepared for new legislation that has been discussed since the adoption of the Commission’s initial Communication in November 2010 and in the four years of legislative discussion, that were shaped by an unprecedented lobbying campaign by parts of the industry. This ostensible lack of preparedness is also surprising bearing in mind that the Regulation does not change existing core principles that should already be respected by controllers through the transposition (and enforcement) of the Data Protection Directive into national law since 1998.

Communication from the Commission (24.01.2018)
https://ec.europa.eu/commission/sites/beta-political/files/data-protection-communication-com.2018.43.3_en.pdf

Commission’s GDPR guidelines for citizens and small and medium companies
https://ec.europa.eu/commission/priorities/justice-and-fundamental-rights/data-protection/2018-reform-eu-data-protection-rules_en

PROCEED WITH CAUTION: Flexibilities in the General Data Protection Regulation (05.07.2016)
https://edri.org/analysis-flexibilities-gdpr/

General Data Protection Regulation: Document pool
https://edri.org/gdpr-document-pool/

(Contribution by Anne-Morgane Devriendt, EDRi intern)

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07 Feb 2018

Germany: Constitutional complaint against intelligence agency BND

By Guest author

EDRi observer Gesellschaft für Freiheitsrechte (GFF) has filed a constitutional complaint against surveillance by Germany’s foreign intelligence agency, the Bundesnachrichtendienst (BND).

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A new law that the German Parliament passed in October 2016 allows the BND to spy on foreign journalists. This destroys trust between journalists and their sources precisely in places where investigative journalism is particularly difficult. Therefore, a number of prominent international journalists and human rights activists have filed a lawsuit against the BND law before the Federal Constitutional Court in Karlsruhe. They are supported by an alliance of journalists’ associations and NGOs.

The plaintiffs are mainly investigative journalists from various countries, including many renowned journalists, such as the winner of the Alternative Nobel Prize 2017 Khadija Ismayilova from Azerbaijan, Raúl Olmos from Mexico, Blaž Zgaga from Slovenia, and Richard Norton-Taylor from Great Britain. The plaintiffs also include the German human rights lawyer Michael Mörth, who is working in Guatemala, and the French human rights organisation Reporters Sans Frontières.

The NGOs supporting the complaint include EDRi observers Gesellschaft für Freiheitsrechte (GFF) and the German Reporters without Borders (ROG), as well as the German Journalists’ Union, the German Federation of Journalists (DJV) and the journalists’ network n-ost, an association of investigative journalists netzwerk recherche (nr). These organisations involved have taken the initiative and are supporting the plaintiffs by lodging a constitutional complaint and meeting the legal costs.

No Trust, No News – We have filed a lawsuit against the BND law
http://notrustnonews.org/?lang=en

GFF launches its strategic litigation for civil rights (16.11.2016)
https://edri.org/gff-launches-strategic-litigation-civil-rights/

(Contribution by Malte Spitz, EDRi observer Gesellschaft für Freiheitsrechte, Germany)

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07 Feb 2018

European Parliament – fighting terrorism with closed-door secrecy

By Ana Ollo

The European Parliament’s Special Committee on Terrorism (TERR) was established on 6 July 2017, for a renewable twelve-month mandate. The Committee was created with the ambitious aim of addressing ostensible practical and legislative deficiencies in the fight against terrorism across the European Union (EU) and with international actors.

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Among its core functions, the TERR Committee is supposed to propose measures to enable the EU and its Member States to prevent, investigate and prosecute crimes related to terrorism, as well as to assess the impact of the EU anti-terrorism measures on fundamental rights.

Halfway through its mandate, is the TERR Committee delivering on fundamental rights?

It is hard to know what the Committee actually does as, already in its first meeting, it was announced that the majority of the meetings would be held in camera, that is, behind closed doors. The Committee is holding a few meetings in public, but these give no sense of the direction the Committee is taking. The lack of transparency is concerning, not only because the European Parliament, the only directly elected EU institution, usually holds Committee meetings in public, but also because the public should be given the opportunity to scrutinise the TERR Committee’s work.

Consequently, and along with Amnesty International, the European Network Against Racism (ENAR), Human Rights Watch, the Open Society Public Policy Institute (OSEPI) and the International Committee of Jurists (ICJ), EDRi started meeting several TERR Committee members. The aim of our discussions was to learn more about what the Committee is doing, as well as to ensure that it does not neglect its mandate on fundamental rights. In addition, we also expressed our concerns regarding the significant competence overlap between the TERR Committee and the Committee on Civil Liberties, Justice and Home Affairs (LIBE), and the need to organise a public hearing with fundamental rights NGOs.

EDRi will continue working to ensure that the EU and its Member States uphold their obligations to respect our fundamental rights when designing and implementing policies and measures that claim to combat terrorism. We will keep spreading the message that restricting our freedoms, particularly without putting in place the necessary safeguards, can be counter-productive.

European Parliament’s TERR Committee main website
http://www.europarl.europa.eu/committees/en/terr/home.html

Special committee to tackle deficiencies in the fight against terrorism (06.07.2017)
http://www.europarl.europa.eu/news/en/press-room/20170629IPR78658/special-committee-to-tackle-deficiencies-in-the-fight-against-terrorism

European Parliament’s Decision establishing the TERR Committee (06.07.2017)
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2017-0307

(Contribution by Ana Ollo, EDRi intern)

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07 Feb 2018

The Bulgarian EU Council presidency & the latest assault on ePrivacy

By Anne-Morgane Devriendt

In January 2018, the Bulgarian Presidency of the Council of the European Union (EU) picked up where the Estonian Presidency left off on the ePrivacy Regulation. It issued two examinations of the last Estonian “compromise” proposal and asked national delegations for guidance on some issues. Together, the documents cover most of the key points of the text. While the Bulgarian Presidency brings clarity on some points, its questions pave the way to undermine the text – and therefore threatens the protection of citizens’ privacy, confidentiality of communications of both citizens and businesses, as well as the positions of innovative EU companies and trust in the online economy.

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One of the main lobbying devices used against the ePrivacy proposal is its alleged redundancy, due to the General Data Protection Regulation (GDPR) coming into force in May 2018. The processing of personal data is already covered by the GDPR, why would we need an additional text? The Bulgarian Presidency addresses this question by clarifying the ePrivacy Regulation’s role as lex specialis of the GDPR. Effectively, the ePrivacy Regulation complements the GDPR, and if the two texts overlap, then ePrivacy applies, as it provides for a higher level of protection of communications data, which are sensitive data.

On privacy settings, covered by Article 10, the Bulgarian Presidency proposes to keep the choices presented by the Estonian Presidency, providing for privacy by default and an easy way to change the settings, or to require more granularity in the settings by blocking the storage or the processing of data by third parties. This offer users a degree of control over third-party activities on their devices.

After this welcome clarification on this (rather simple) issue and this relatively privacy-friendly proposal, the Bulgarian Presidency then follows up on the undermining of the text already initiated by the Estonian Presidency in December 2017.

In the second document that deals with the third Chapter of the proposal on the “rights to control electronic communications”, the Bulgarian Presidency mostly follows the Estonian proposal, except for publicly available directories. There, it proposes to either put obligations both on the providers of number-based communication services and on publicly available directories, or the harmonisation of the rules with opt-in or right to object. As for direct marketing, the Bulgarian Presidency asks the national delegations to give their opinion on the need for uniform rules on voice-to-voice calls.

The Bulgarian Presidency also asks the national delegations to choose between two proposals concerning permitted processing of communications data (provided in Article 6): a middle ground that would be to allow further processing if it has no impact on privacy; or the inclusion of a “legitimate interest” ground for further processing of metadata. It is hard to understand what kind of further processing of communication data – or metadata – would not impact privacy (not least following the latest revelations of security breaches due to “non-personal” data, or how there could be a “legitimate interest” for the further processing of communication metadata, not least due to contrary positions already taken by the Court of Justice of the European Union in the Tele 2 case.

On storage and erasure of electronic communications data, regarding data that is no longer needed to provide a service, the Bulgarian Presidency proposes to either delete the provisions on the deletion of data, or to keep them while deleting the provisions authorising recording or storage of the data by the end-user or a third-party entrusted by them. The first possibility would remove the protection of communication data at rest – ironically creating, at the request of industry lobbyists, the kind of incoherence between ePrivacy and the GDPR of which industry lobbyists have been warning. The second would keep the level of protection agreed upon by the European Parliament.

The worst attack of the Bulgarian Presidency on the text concerns the protection of terminal equipment (Article 8). In addition to the proposals put on the table by the Estonian Presidency, the Bulgarian Presidency proposes different exemptions to the need for consent for the processing of data from an individual device: for “non-privacy intrusive purposes”; based on a “harm based approach” that would consider the levels of impact of different techniques on privacy. It also proposes to couple together the addition of a “legitimate interest to deliver targeted advertisement” and the right to object; and even asks whether the text should cover the “access to services in the absence of consent to process information”. Again, it is hard to see how there could be a “legitimate interest to deliver targeted advertisement”, and how this would contribute to the protection of privacy. Such a convoluted legal construction would, in any event, be only usable by the largest targeted (or “surveillance”) advertising companies. If this approach is followed, the EU would end up with legislation (ePrivacy) that would make it easier to access data on a computer system, as well as legislation (attacks against computer systems – Directive 2013/40/EU) criminalising access to a computer system.

Although the Bulgarian Presidency did take a progressive stance on the links between the GDPR and ePrivacy, the rest of its proposals systematically undermine the text by lowering the level of protection of the communications and privacy.

ePrivacy Regulation proposal – Examination (1) of the Presidency discussion paper (11.01.2018)
http://data.consilium.europa.eu/doc/document/ST-5165-2018-INIT/en/pdf

ePrivacy Regulation proposal – Examination of Articles 12 to 16 (25.01.2018)
http://data.consilium.europa.eu/doc/document/ST-5569-2018-INIT/en/pdf

Latest proposal by the Estonian Presidency (05.12.2017)
http://data.consilium.europa.eu/doc/document/ST-15333-2017-INIT/en/pdf

ePrivacy proposal undermined by EU Member States (10.01.2018)
https://edri.org/eu-member-states-undermine-e-privacy-proposal/

(Contribution by Anne-Morgane Devriendt, EDRi intern)

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07 Feb 2018

Smashing the law without breaking it: A Commission guide

By Anne-Morgane Devriendt

How to create a general monitoring obligation without creating a general monitoring obligation? That is the question that the Commission has been trying to answer with the Article 13 of its “Proposal for a Directive on Copyright in the Digital Single Market”. It aims at solving the issue of a so-called “value gap”, that is the alleged revenue that user uploaded content brings to online platforms and gives them a dominant position in the negotiations with the creators.

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Together with 56 other civil society organisations, EDRi sent a letter to the European Commission in October 2017. We have just received a response – hilariously, we were told that the letter has been ready for a long time but it was “stuck in the machine”. Less hilarious is the legal sophistry that the response contained.

The (il)legality of general monitoring

A general monitoring obligation would be contrary to the E-Commerce Directive, European Court of Justice case law, and any reasonable reading of the Charter of Fundamental Rights of the European Union.
The E-Commerce Directive provides for (conditioned) exemptions of liability for online platforms. In practice, online platforms cannot be held responsible for the content that is uploaded by their users, as long as they act swiftly (“expeditiously”) when copyright infringing content (or any form of illegal material) is flagged by rightsholders.

The illegality of general monitoring has been established by the Court of Justice of the European Union (CJEU) in the Netlog/Sabam and Scarlet/Sabam cases. In the first case, between a collecting society and a social network, the Court ruled that hosting service providers could not be put under a legal obligation to install and operate, at its expense and for an unlimited period, filtering systems for content uploaded by the users in an indiscriminate and preventative manner. In the second case, between the same collecting society and an Internet Access Provider (ISP), the Court ruled that ISPs could not have an obligation of using filtering systems that would be able to identify works subjected to copyright. Last but not least, a general monitoring obligation would be contrary to the fundamental rights to protection of personal data and the freedom of expression and information.

Making it mandatory but not obligatory

To circumvent the abovementioned legal obligations, the Commission seems to have chosen the option of coercing online platforms into “voluntarily” operating “censorship machines”. With careful wording in Article 13 and its accompanying recitals, 38 and 39, there is no explicit general monitoring obligation, but rather a strong suggestion that all online platforms could (as the only option suggested) choose to use technologies already used by the biggest platforms, “such as content recognition technologies”.

Article 13 has come under heavy criticism from a wide range of stakeholders – civil society, startups, the internet industry, and academics, Some Member States have questioned its legality and asked clarification to the legal service of the Council. Two of the four Committees of the European Parliament voted against it in their Opinions.

The Commission’s reply to the civil society letter mentioned above is consistent with its line that upload filtering is mandatory not obligatory. It stresses that the proposal respects the Charter of Fundamental Rights, and that “the Commission committed itself to maintaining a balanced and predictable liability regime for online platforms”, and denies the establishment of a general monitoring obligation. But it also reiterates the “obligation” for online platforms to “take measures, such as content recognition technologies, aimed at preventing the upload of infringing content”.

General monitoring is neither “general” nor “monitoring”

The European Commission considers, in line with the US National Security Agency (NSA) argumentation that it opposes in other contexts, that searching through everything that people upload to the internet is not “monitoring”. Why? Because it is only a computer programme looking for copyrighted files. It will only delete your communications, breach your rights to parody, quotation, access to knowledge and freedom of expression, that’s all.

And it is not general monitoring because, after copyright owners give the service provider millions of file identifiers, they will be doing millions of “specific” searches.

So, when in 2001 after two years of discussion, the European Parliament, European Commission and Council agreed to prohibit “general monitoring” of the internet, they were only referring to cases where the entity doing the monitoring did not know what they were looking for. Because the NSA doesn’t do monitoring and neither will the censorship machine. Right?

Reply by the Commission (01.02.2018)
https://edri.org/files/copyright/20180201-EC_ReplyOpenLetter-Art13.pdf

Civil society calls for the deletion of the #censorshipmachine (16.10.2017)
https://edri.org/civil-society-calls-for-the-deletion-of-the-censorshipmachine/

Copyright reform: document pool (12.12.2016)
https://edri.org/copyright-reform-document-pool/

Commission claims that general monitoring is not general monitoring (10.01.2018)
https://edri.org/commission-claims-that-general-monitoring-is-not-general-monitoring/

(Contribution by Anne-Morgane Devriendt, EDRi intern)

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