What better way to raise awareness on private policing on the Internet than
to organise a workshop in the European Parliament and let the stakeholders
answer the question: “Self-regulation: Should online companies police the
internet?” On 7 December 2011 MEP Marietje Schaake organized, with support
from EDRi, an event on this issue. Among the speakers were representatives
from the European Commission, the content and internet industries and
civil society.

Representatives from the European Commission constituted the first panel.
Werner Stengg, from Directorate General Internal Market and Services, Head
of Unit Online Services, said, with regard to the E-commerce Directive,
there was no need for revision but a need for clarification on the “Notice
and Takedown” (now significantly broadened to “Notice and Action” – which
would cover actions by intermediaries other than hosting providers). However three major, partially contradictory, issues
were raised in the consultation that need to be further discussed for 3
1) takedowns are slow or not happening;
2) fragmentation of the rules;
3) there are civil rights at stake (particularly due to incentives to
takedown content leading to excessive takedowns; no fair appeal procedure;
lack of transparency).

On 11 January 2012, there will be a communication on the E-commerce
Directive. He agreed that the important issue was the liability regime,
however he had no idea on the outcome of his ongoing work on “Notice and
Action”. He said that the Commission did not reject the idea of “Notice and
Notice”. They are going to take every solution proposed into account and
analyse the pros and cons, before making any decision. Detailed analysis on
this point will not be in the Communication but will follow in the second
half of 2012.

Nicole Dewandre, special advisor to the Director General advisor for
Directorate General Information Society, talked about the Corporate Social
Responsibility (CSR) communication, which puts into place 2 actions:
firstly, a multistakeholder approach to Corporate Social Responsibility and
secondly, the improvement of self- and co-regulation processes. The DG
focuses on the Internet and the digital transition.

In the first round of questions, the audience raised the question on how the
right to fair trial/due process is going to be guaranteed, especially as
there are already examples of monitoring uploaded content operated via the
content ID platform. The 2003 inter-institutional agreement between the
Commission, Council and Parliament, which excludes self-regulation in cases
where fundamental rights are involved, was also evoked. However, no
conclusive response was given by DG InfSo on that concern. Finally, the
issue of how the concept of “do not track” would be implemented was raised,
due to doubts of some participants that this was working as a
self-regulation initiative. Wouldn’t more regulation be a better solution
more than self-regulation?

In the second panel, Chris Ancliff, General Counsel of Warner Music Group,
and member of the board of directors of IFPI (International Federation of
Phonographic Industry) stated that ISPs help illegal content and businesses
to flourish. According to him, ISPs, search engines, credit card
companies and advertisers have their role to play in the enforcement of
copyright law. In his mind, asking ISPs to block access was not
unreasonable. He also said that ISPs have much to gain in the process
and that the only losers would be the pirates.

Joe McNamee of EDRi briefly described ten of the main misunderstandings that
led to self-regulation proposed by some policy-makers and industry
representatives. For example, he underlined that “self”-regulation is not an
isolated issue, that ISPs were not the right entities to enforce criminal
sanctions and that it often had unintended negative consequences on

Chris Smith, representing composers and songwriters, focused on the question
of “who feeds the artist?” He also said that the ISPs must take
responsibility for the environment they created and are benefitting from.

According to the President of EuroISPA, Malcolm Hutty, Internet
intermediaries find themselves in the middle of an argument with EDRi on one
side and IFPI on the other. The issue however is far broader than copyright
since many different parties are interested in having ISPs police the
internet. ISPs face an important problem, how do deal with potentially
illegal content without causing harm to other interests? Transparency on
network management and removed material is important, but are ISPs the
competent and adequate bodies to deal with illegal/potentially illegal
content? Since blocking measures must be regulated, transparent and
proportionate, adequate safeguards must be put into place and he welcomed
the Directive on sexual exploitation of children on this point (which
rejected mandatory EU-wide blocking). Safeguards
in that Directive mean new rights granted to the citizens. Technical
measures are sometimes not possible and have consequences on reliability and

Jermyn Brooks gave a brief introduction to the Global Network Initiative
(GNI) which was created as a multi-stakeholder initiative in order to
provide maximum transparency for users and set global standards for industry
in a self-regulatory model. In his opinion, self-regulation would be a good
solution to keep up with a quickly changing environment. However it should
not replace due process. GNI is looking for the right balance between the
principles of freedom of expression and privacy and security.

Marietje Schaake underlined the fact that there was a hierarchy between
fundamental rights. She asked if the cost of enforcement was not
disproportionate to the benefits.

To perfectly end the workshop, Malcolm Hutty stressed the necessity of
applying the rule of law to the online environment.

“Self”-regulation: Should online companies police the internet?

Joe McNamee’s speech (7.12.2011)

Video of the event – summary (14.12.2011)

(Contribution by Marie Humeau – EDRi)