In February 2013, EDRi wrote to European Commission President
José-Manuel Barroso to highlight problems with the very divergent and
contradictory approaches being taken by the Commission regarding the
role of intermediaries in dealing with allegedly illegal content and to
support the evidence-based approach of Commissioner Barnier and DG
The letter was motivated by two different developments in the
Commission. Firstly, we have seen a constant trickle of
“self-regulatory” initiatives proposed and funded by the Commission,
such as the “CEO Coalition to make the Internet a better place for kids”
(child protection, led by Commissioner Kroes) and the “Clean IT Project”
(terrorism, funded by Commissioner Malmström). These initiatives always
have certain characteristics:
– they are never based on any specific problem analysis but the concept
that “something” should be done by “someone”.
– while the Commission funds them and even sometimes initiates and
directs them, the Commission accepts no responsibility for their outcomes.
– even though the Commission accepts no responsibility for the outcomes,
it has no hesitation in demanding certain “voluntary” measures to be
implemented by the industry – with the threat of bad publicity or
legislation (or both) if its wishes are not complied with.
The other development is the “Notice and Action” initiative by DG
Internal Market of the European Commission. Here, the Commission has
taken the opposite approach. It invested significant manpower and
resources into bilateral and multilateral meetings with the Internet
industry, civil society, copyright and child protection organisations
and organised a consultation (which received a record number of
responses from citizens). On the basis of the evidence collected, the
Commission service in charge came to the conclusion that the Commission
had to take responsibility for for problems that it has identified and
launch new legislation to provide greater legal certainty for all
stakeholders, ensuring adequate protection for citizens’ fundamental
right to freedom of communication.
While EDRi has not seen the proposed Directive and accompanying
documents, we felt that the Commission deserved support for this
diligent, evidence-based approach and its apparent willingness to take
legal responsibility for fixing the problems that it identified.
Unfortunately, with elections in May 2014 and the end of the current
Commission later this year, there is a strong risk that the Commission
will not have the courage of its convictions. Despite the fact that the
Commission has identified restrictions of freedom of communication that
have their origins in existing EU legislation, President Barroso may not
feel able to show the necessary leadership to resolve the problem.
Instead of legislation to fix the problem, non-binding “recommendations”
will probably be the “safe” solution adopted by the Commission.
This would be a sad development, compared with the hopes for fundamental
rights that marked the start of the current Commission’s term of office.
On 3 May 2010, when taking the oath to “respect the treaties and the
Charter” President Barroso said “the oath of independence and respect
for the EU Treaties is more than a symbolic act. The European Commission
is a unique institution and the Commissioners have today made clear that
they will uphold all the principles and values enshrined in the Treaties
and the Charter of Fundamental rights”. Indeed.
Commission Vice-President Viviane Reding, responsible for Fundamental
Rights, responded to our letter on behalf of President Barroso. The
brevity of the response shows the controversial nature of the topic
within the Commission. While the most likely outcome now appears to be
that the Commission will back away from its evidence-based approach, the
legally dubious, evidence-free approach of “voluntary measures” is now
politically a far more risky proposal than it was a few months ago.
EDRi letter (21.02.2013)
Commission response (11.04.2013)
CEO Coalition to make the Internet a better place for kids (14.03.2012)
CEO Coalition conclusions (2.02.2013)
Clean IT – Leak shows plans for large-scale, undemocratic surveillance
of all communications (21.09.2012)
CleanIT looking for the question that it was seeking an answer to
ENDitorial: Clean IT is just a symptom of the pinata politics of
privatised online enforcement (26.09.2012)
(Contribution by Joe McNamee – EDRi)