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Deutsch: [ENDitorial: EDRi veröffentlicht Studie über Selbst-Regulierung und Zensur |]

European Digital Rights has published a study on the scale of measures being
undertaken to outsource policing activities to private companies in the
Internet environment and its significance for fundamental rights,
transparency and openness on the Internet.

Internet intermediaries around the world are taking on more important roles
in their states’ efforts to address the dissemination of illegal online
content and this trend is likely to become stronger as we move into a new
environment of “extra-judicial sanctions” against consumers. With some
notable exceptions, these activities are being forced onto Internet
intermediaries rather than being demanded by them.

The study found that the term “self-regulation” is being inappropriately
used to describe what is not self-regulation at all, but the monitoring,
policing and even punishing of alleged illegal activities of citizens.
Proposed legislation and “non-binding guidelines” are forcing intermediaries
into a position in which they can no longer avail themselves of legal
protections – where they are obliged, in effect, to police private online
communications, often in blatant disregard of legal safeguards and even to
impose sanctions for alleged infringements.

Should Internet intermediaries become privatised enforcement systems? The
measures recently taken by Visa, Mastercard, PayPal and EveryDNS against
WikiLeaks are a case in point. Even without WikiLeaks being charged with any
particular crime, private companies have acted unilaterally against it.

The devolved enforcement initiatives documented in the report aim to
persuade industry to engage in a vigilante system of monitoring and
sanctioning; the report catalogues current international proposals, which

– a series of ongoing “public-private dialogues” organised by the
European Commission to encourage hosting providers to engage in
extra-judicial rulings of illegality;
– a 2010 European Commission funding proposal incentivising
companies to engage in “self-regulatory” Internet blocking of allegedly
illegal online material;
– discussions launched by the Council of Europe’s Assembly in 2010
whose intention appears to be to increase the legal obligations of
intermediaries, despite the fact that this would be “contrary both to the
letter and the spirit of the 2003 Declaration on freedom of communication on
the Internet”;
– 2010 OECD discussions, which aim to increase the responsibility of
Internet intermediaries in advancing “public policy objectives”;
– the Anti-Counterfeiting Trade Agreement (ACTA) that contains provisions
that would encourage or coerce ISPs into policing their
networks and enforcing extra-judicial sanctions, where they deem it to be
– an OSCE consultation in 2010, the aim of which was to explore ways
to enable ISPs to “‘regulate’ online legal or illegal ‘hate speech'”‘;
– EU/India and EU/Korea bilateral free trade agreements that would change
the EU acquis on intermediary liability.

The encouragement of extra-legal measures to limit access to information,
proactive policing of the Internet and the exclusion of law enforcement
authorities in investigating serious crimes are factors that contribute to
the weakening of the rule of law and democracy. Indeed, by taking
responsibility away from legal authorities, such measures can result in
serious crime, such as the publication of child abuse material online, being
addressed by industry through cosmetic measures (such as blocking) rather
than proper investigation and prosecution.

While these appear to be regressive steps away from freedom, the study
found, for instance, that the European Commission appears far from perturbed
by the dangers for fundamental rights of this approach and appears keen to
export the approach. This process is gradually strangling the openness that
is at the core of the Internet. This openness has enhanced democracy, has
shaken dictatorships and has boosted economies worldwide. This openness is
what we will lose through privatised policing of the Internet by private
companies – what will we gain?

EDRi report: The slide from “self-regulation” to corporate censorship

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(Contribution by Joe McNamee – EDRi)