By Joe McNamee

The European Commission is pushing forward energetically on privatised law enforcement projects for all manner of internet activities. This is the approach to terrorism, hate speech, copyright enforcement… whatever the question, the answer is that internet companies can solve the problem.

01_follow_the_money

It is currently discussing “guiding principles” for withdrawal of services by advertising companies to penalise and prevent “commercial scale” infringements. Tellingly, the final paragraph of the “guiding principles” contains very similar wording to the ill-fated “Anti-Counterfeiting Trade Agreement” (ACTA) that was rejected in 2012.

Like ACTA, the “guiding principles” include illusory “safeguards”, such as references to non-existent legal terms like “fundamental principles” and “fair process” (not due process). Like ACTA, it refers to “commercial scale”, as if this was a safeguard. The European Commission itself has previously said that the term is too vague in existing law.

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The text also refers to a “right to access lawful content”, even though there is no such “right”. We have a right to freedom of movement (not a right to legal movement), we have a right to freedom of communication. The implication of the expression “right to access lawful content” is that everything we do or say should be assumed to be illegal until proven otherwise. This is profoundly objectionable.

The planned agreement has a “verification and compliance” process for when participating companies cooperate to destroy an online service by withdrawing advertising revenue. But what is this “verification and compliance” process actually verifying or complying with? This is not specified, presumably because it is not important for the Commission. How accessible will a process be, if a provider withdraws services on the basis of terms of service? On what basis would an injured party believe that their service will get a fair hearing from a large provider, possibly in another country? A credible and accessible complaint process and redress mechanism appears unlikely.

Paragraph 7 of the Commission’s document both says that the agreement “will establish key performance indicators (KPIs)” and that signatories to the agreement will set up a working group “on the KPIs”. Does this mean that a working group on KPIs will be set up after the KPIs have already been defined?

It has been shown again and again and again that rightsholders cannot be trusted in projects of this kind. The Commission is proposing a project where, as described above, the target is ill-defined, the safeguards are illusory, jurisdiction is unaddressed and the compatibility with primary EU law (Article 52 of the Charter of Fundamental Rights of the European Union in particular – in contravention to the most basic of the Commission’s roles) is ignored – the Commission has already taken the view that such “voluntary” agreements are beyond the reach of the Charter. Such proposal appears reckless at best and legally untenable at worst.

European Commission: Guiding principles: The Follow the Money Approach to IPR enforcement –
Stakeholders’ voluntary agreement on online advertising and IPR
https://edri.org/files/draft_follow_the_money_stakeholder_comments_20160916.pdf

European Commission – Roadmap: Proposal for a revision of the Directive on the enforcement of intellectual property rights (Directive 2004/48/EC)
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf

Warner Bros: Our false DMCA takedowns are not a crime (15.11.2013)
https://torrentfreak.com/warner-bros-our-false-dmca-takedowns-are-not-a-crime-131115/

Digital camera review taken down by a botched DMCA notice that makes claims of trademark infringement (21.03.2013)
https://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml

Microsoft DMCA notice “mistakenly” targets BBC, Techcrunch, Wikipedia and U.S. Govt
https://torrentfreak.com/microsofts-bogus-dmca-notices-censor-bbc-cnn-wikipedia-spotify-and-more-121007/

(Contribution by Joe McNamee, EDRi)

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