By Maryant Fernández Pérez

On 28 April 2016, EDRi asked the Directorate-General for Migration and Home Affairs of the European Commission (DG Home) to release more information about a new initiative announced in April 2016, the Joint Referral Platform.

What we knew already (or thought we knew)

The existence of the Joint Referral Platform was disclosed on 20 April 2016 in the European Commission’s Communication (EU) 2016/230. The alleged objective of this project is to ensure that “material removed from one site [is not] uploaded elsewhere” (i.e. informal mass censorship of uploads). The Commission added that the Joint Referral Platform is “being developed by the internet industry with full Europol involvement”. While being led by (unspecified) companies, the Commission will be providing €10 million Euro, money which will also be used to “maximise the effectiveness of alternative narrative campaigns”.

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Another document of the Council of the European Union (dated 4 July 2016) clarifies that the targeted content is criminal (seemly only regarding terrorism). However, the Council document confused us by saying that the “participants/members guarantee that they will not upload criminal content.” Who are these “participants/members”? Wasn’t the purpose of this to implement something similar to Google’s flawed Content-ID? If individuals are apparently uploading criminal content, what is the role of states, how will highly sensitive evidence be stored and communicated? Does anyone care?

What we now know

After extensive delays, the European Commission responded to our freedom of information request on 27 June 2016 (although we didn’t actually receive it until 11 July). What we now know is still not much. Mainly three things:

Firstly, industry is (again!) taking the lead, despite the criminal nature of the content that is ostensibly being targeted.

Secondly and not surprisingly, no invitation has been extended to civil society to participate, contrary to the assertions of the Commission that: “[the] Joint Referral Platform [will] be developed by the internet industry with the contribution of different stakeholders.” It seems that civil society is not an stakeholder relevant for the discussions. In addition, it seems that Europol is not that “fully involved”. In fact, the Commission stated that “once [it has] sight of the industry’s proposal, discussions will then take place with Europol to determine its exact role.” Perhaps if law enforcement is not involved in discussions about criminal content, it should not be surprising that other “stakeholders” are also being filtered out of the discussions with the companies that are now in charge of criminal law enforcement online.

Thirdly, the Commission announced the Joint Referral Platform, but it told us it has not been launched and it seems it does not know where it will go or does not want to communicate whether the technology would be able to avoid circumventing tools, such as those widely used for copyright infringements. Of course, as long as the internet is the internet, the answer is that of course they can be circumvented.

What we still don’t know

First, since the Joint Referral Platform has not been “launched”, the Commission argued it did not possess some of the information we asked for. It recognised, however, that it holds relevant documents. Yet, the Commission did not publish any documents because this can undermine public security, commercial interests of the internet industry involved, “jeopardise the protection of integrity of their managers” and undermine a “highly sensitive on-going process”. We would tend to agree that privatising criminal enforcement and putting it in the hands of – generally foreign – internet companies would undermine public security, although this may not be what the Commission meant.

Second, when we asked the Commission about the goals and (legal) principles under which this Joint Referral Platform will be launched, the Commission omitted any information about the legal basis for this. It solely restated the wording of the the Communication of 20 April 2016.

Third, we are unaware of which “internet industry” is involved. Has the Commission resorted to limiting itself to big US corporations only, yet again?

What we hope to know next

We hope to know more in the future and to be able to take action accordingly. Most importantly, we hope the European Commission will take responsibility to ensure that, in this initiative, companies will report back to Member State authorities in order to investigate and prosecute potential terrorists (if this is the real purpose of this initiative). Otherwise, the ostensible public policy objective (preventing terrorism) will clearly not be achieved. There is a huge risk of counter-productive effects if the stress is on fighting criminal content and not the criminal. And yet, in its response to the relationship between the EU Internet Referral Units set by Europol and the Joint Referral Platform, the Commission stated that “the role of the EU IRU is to support the companies in optimising the referral process and reducing accessibility to terrorist content online, not to initiate investigations.” “[Y]ou would need to ask Member States about follow-up by their law enforcement authorities after content has been removed”, the Commission added. We have to ask the Member States because, it appears, the Commission forgot. It isn’t like it is a matter of life or death, is it?

EDRi’s Freedom of information request to DG Home on the Joint Referral Platform (28.04.2016)
https://www.asktheeu.org/en/request/joint_referral_platform

European Commission (DG Home)’s response (11.07.2016)
https://edri.org/files/foia_jointreferralplatform_commissionresponse_11072016.pdf

European Commission’s Communication on the (updated) European Agenda on Security (20.04.2016)
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-security/legislative-documents/docs/20160420/communication_eas_progress_since_april_2015_en.pdf

Council of the European Union: Outcome of proceedings to the Terrorism Working Party (04.07.2016)
http://data.consilium.europa.eu/doc/document/ST-10218-2016-INIT/en/pdf

YouTube’s Content ID (C)ensorship Problem Illustrated (02.03.2010)
https://www.eff.org/deeplinks/2010/03/youtubes-content-id-c-ensorship-problem

European Commission’s FAQs: Stronger action at EU level to better tackle violent radicalisation (14.06.2016)
http://europa.eu/rapid/press-release_MEMO-16-2179_en.htm

New documents reveal the truth behind the Hate Speech Code (07.09.2016)
https://edri.org/new-documents-reveal-truth-behind-hate-speech-code/

(Contribution by Maryant Fernández Pérez, EDRi)

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