The European Commission launched a consultation to ask your views about the fight against illegal content on the internet. In reality, the purpose of the "consultation" is to generate "statistics" that the Commission needs to legislate to demand more and quicker unaccountable privatised censorship and blocking of content by internet companies.
The Commission fails to provide any evidence to back up its policy for more privatised law enforcement, which appears to be a populist effort to look like it is doing “something” instead of making honest efforts to solve issues at hand.
Similarly, it is grossly inappropriate for the Commission to put infringements like copyright on the same level as serious crime like child sexual abuse. Even the European Parliament has heavily criticised the poor analysis and data collection by the European Commission and asked to do an assessment again. The European Commission appears deaf to such criticism
Section for the general public - about you
We have prepared this guide to make it easier for you to respond. This guide is designed for people who choose the option to respond "as an individual, in my personal capacity".
The Commission, particularly when it is not actually seeking to collect real data, as in this case, is unlikely to contact you. Therefore it is unlikely that the Commission will contact you. However, if you are worried, you should select "no".
Section for the general public
The only obligatory fields are "country of residence" and "age". There are no disadvantages for you if you do not provide accurate data here.
How often do you use the following types of services?
There are no particular problems with this section from a digital rights perspective.
Have you been a victim of one of the following illegal activities?
You are not allowed to answer certain questions if you do not claim (rightly or wrongly) to be a victim of one of the options listed. As everone has been a victim of spam, one option might be to select "g" and say "spam" as the illegal activity. This will give you the right to answer all relevant questions.
Under the question "While using the services mentioned here-above, did you come across the following types of content?" you can answer as appropriate to your experience. If you don't know for certain that content was illegal, you obviously should not say you did. However, you should only say you did if you are sure that the content breached a specific provision of your country’s criminal code.
Please share in what way this has affected you
The Commission is clearly seeking to get responses that fit with its existing policy, so it suggests the kind of impacts it wants to hear about. However, you can just as easily respond that excessive amounts of content has been restricted, that content has been unjustifiably deleted or blocked, that this has impacted your rights and freedoms, such as your right to privacy or your right to seek and impart information. For example, your privacy is being limited by invasive measures such as Google's ContentID, which also removes your right to avail of copyright exceptions and limitations, etc.
You might also want to point out that restrictions imposed by service providers are almost impossible to oppose. The provider’s redress mechanism offers no real help if the service provider is both judge and jury. There's little point in appealing the jury's decision to the judge except if you make a real fuss and get attention, because providers care about public relations.
Your experience: encountering illegal content online
Most people accessing content that they believe to be illegal are actually not accessing illegal content. In order to balance the large number of "false positives" that will be included in the Commission's "statistics" as a result of this "consultation", it will be helpful to have people responding that they have never encountered such content. Of course, if you are sure you did accidentally access illegal content, you should answer honestly.
This section appears to have been designed to produce incorrect statistics.
The vast majority of reports to hotlines of illegal content that is comparatively easy to identify refers to content that is, in fact, legal. For example, this year, only 11% of reports of illegal child abuse material and 12% of reports of content being National Socialist to the Austrian hotline were correct (2018, year to date, as of 7 June 2018). It seems likely, therefore, that the results from this question will overestimate actual experience of illegal content by at least a multiple of ten.
This will then skew answers to questions that will only be available to people who say that they have experienced illegal content. The questions, and ensuing statistics, assume that 100% of the content was actually illegal, when the real figure is approximately 10%.
How were you affected by the illegal activities pointed to in the previous answers
Youl could consider sharing your views
- on the need for an evidence-based approach to illegal content online.
- worries you might have that serious crimes like child abuse and terrorism are being dealt with in a superficial way, possibly leading to impunity.
- the lack of research on the effectiveness of current measures
- the lack of harmonised implementation of EU law on illegal hate speech, racism and xenophobia and its failure to comply with international standards on freedom of expression.
Have you ever tried to post online content which was blocked or removed by a hosting service provider?
In order to be allowed to answer the question, you need to select "yes, once", or "yes, several times"
On what grounds was your content removed or blocked?
You should select whichever option applies, as relevant, or choose "other" and say that all public domain content that has been blocked or taken down is "your" content, as a member of the public
Have you taken any action?
Here you can explain that, while it is, in theory, possible to send a counter-notice and ask for content to be put back, this is pointless in practice. Why? Because the providers can always hide behind their unclear terms of service to justify removing any content.
To what extent do you agree with the following statements in relation to the process of removing of your allegedly illegal content and follow-up actions?
This is a very important question, as it is looking to create (subjective and misleading) "evidence" that it is okay to force companies to censor content, because their rules and procedures are predictable and fair. Therefore the correct option for all answers is "strongly disagree".
In your opinion, who has an important role to play in tackling illegal content online?
The question makes little sense, firstly because it requires respondents to say that everybody has some role, even marginal (or say they don't know or not answer), which are not the only options. It also depends on other stakeholders. For example, hosting service providers might have a role, but only if this does not remove pressure on law enforcement to take more meaningful action against serious crime like child sexual abuse. We suggest saying "marginal role" for all except "public and other competent authorities and law enforcement bodies" who, quite obviously, should have the main role.
To what extent do you agree with the following statements?
We recommend saying:
- Strongly agree: "The internet is safe for its users."
- Strongly disagree: "It is important that there are arrangements in place so that no illegal content is spread on the Internet." Comment: it is impossible to ensure that no "illegal" content is spread so it is unwise to try to offer this as an option.
- Strongly agree:"It is important that freedom of expression is protected online."
- Strongly disagree: "Hosting service providers should process all notifications they receive and assess the legality of the content notified." Comment: hosting service providers are private companies and not courts. They should not decide what is legal, illegal or harmful.
- Strongly disagree: "When content is flagged as illegal by private organisations with proven expertise, hosting services should speed up the process for removing the content." Comment: "private organisations" refers to a very diverse and unclear set of organisations and it is inappropriate to offer unlimited support for all of them without knowing who they even are, how they work, how accountable they are, etc.
- Strongly disagree: "When content is flagged as illegal by competent authorities or law enforcement bodies, platforms should speed up the process for removing the content." Comment: this gives unaccountable power to law enforcement authorities
- Strongly agree: "When online hosting services remove content, users should be able to contest this decision by contacting the service (counter-notice)" Comment: it is important to point out in the final section that, while this is useful, it is not reliable as a mechanism for protecting freedom of expression
- Strongly agree: "The regulatory framework is effective against illegal content." Comment: This statement is highly ambiguous. Taking the context of the consultation to produce statistics that show that we need more and quicker privatised law enforcement, we suggest "strongly agree" as a response. However, by no means should this be understood to mean that the current framework is addressing illegal content in a diligent, human-rights-friendly way.
- No answer: "Hosting service providers are effective in tackling illegal content." Comment: either you agree, in which case you will be understood as supporting an obligation on companies to carry out this activity without any accountability or responsibility by them or other parties, or you disagree, in which case you will be understood as calling for measures to become "effective", i.e. faster and quicker privatised law enforcement.
In your opinion, is there a need for further measures to tackle illegal content online?
- Strongly disagree: "Through proactive measures taken by hosting service providers and other relevant actors." Comment: this involves privatised censorship-by-algorithm.
- Strongly disagree: "Via legislative measures." Comment: The Commission has provided no evidence to suggest that legislative measures to justify their support for more privatised law enforcement.
- Strongly disagree: "Actions should be taken at EU level to put appropriate measures in place." Comment: this is asking for a blank cheque for the Commission to impose measures leading to more privatised law enforcement.
- No answer: "Different types of illegal content should be dealt with in different legal frameworks, to take into account specificities." Comment: this question is misleading and too ambiguous to answer. Either it means that service provider liability should be the same regardless of the content (which it should) or the laws for treating different types of illegal content should be the same, which they obviously should not.
Are there additional comments you would like to make? Please detail, in particular, if your answers refer to different experiences, different types of illegal content, etc.
Please note that the character limit here is very low, so you may prefer to submit a longer text file. In any event, we refer you to edri.org, where you will find a lot of information on privatised law enforcement. We draw your attention in particular to our recent letter to Commissioner Gabriel, proposing a way forward. Issues that you might want to address here include:
- the limitations of counter-notices as a safeguard for freedom of expression;
- the need for political accountability for any restrictive measure imposed;
- the need to (finally!) start learning from experience in this policy area;
- the need to ensure that the letter and spirit of international human rights law are respected;
- the need for flexibility to deal with inevitable changes in the way offences are committed online;
- the need to avoid any counterproductive effects of the measures being imposed;