By Joe McNamee

On 5 December 2017, a group of 31 Members of the European Parliament (MEPs) sent a letter to the European Commission demanding action on illegal content online. The letter was initiated by Dutch Liberal MEP Marietje Schaake, and its signatories are from across the political spectrum.

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The letter reacts to the extreme position taken in the Commission’s “Communication on Illegal Content Online”, arguing that some of the proposals “pose fundamental challenges to preserve the rule of law online”. As inspiration for a more balanced approach, the MEPs point to the Council of Europe’s draft Recommendation on the role of internet intermediaries and EU Guidelines on Freedom of Expression Online and Offline. Despite the fact that the latter document was prepared by the Commission itself only four years ago, the Commission deleted a reference to it in the final revisions of Communication on Illegal Content Online.

The letter suggests – as the Commission itself internally concluded in 2014 – that there should be additional procedural safeguards for “notice and takedown,” as foreseen by the E-Commerce Directive. The MEPs argue that a “clear focus on enhancing transparency, and limiting the privatization of content removal decisions, is essential” both to avoid abuse of such procedures in the EU and to legitimise or vindicate questionable laws abroad.

In line with EDRi’s letter to the Digital Economy Commissioner Mariya Gabriel on 20 October 2017 (no response has yet been received), the MEPs demand thorough research. However, there is currently little sign of any such thorough research being prepared. This means that, while entirely justified and accurate, the letter strikes fear in the hearts of many that are close to discussions on this topic.

The Commission is so focussed on delivering what copyright lobbyists want (takedowns and staydowns), it appears to have abandoned all diligence in relation to fundamental rights or, indeed, every other kind of concern regarding other kinds of illegal content. The European Parliament was so unhappy with the Commission’s report on takedown and blocking of child abuse websites, it has demanded that a proper report be prepared. In the Resolution (due for adoption on 14 December) the Parliament calls for a proper report, “deplores” the failure to respect the deadline for submitting the report and lists various types of statistics that should have been provided and calls on Member States to transpose the Directive fully and correctly.

In keeping with this far from diligent approach, the Commission has indicated that – in relation to content that relates to serious crime and terrorism – it has no idea how many (if any) of the referrals of potentially terrorist or serious criminal content by the EU Internet Referral Unit to internet providers have led to prosecutions, or even investigations. For nearly every type of serious illegal content online, availability of the content is only a part of a wider problem. There seems to be little, if any, concern about this.

In this environment, if MEPs are to get an appropriate response from the Commission, a significantly new approach from the Commission would be needed. Such an approach would place a far greater emphasis on evidence-gathering, protecting fundamental rights and fighting crime than currently is the case.

Letter to the commission on notice and action procedures (05.12.2017)
https://marietjeschaake.eu/en/letter-to-the-commission-on-notice-and-action-procedures

EU Human Rights Guidelines on Freedom of Expression Online and Offline https://eeas.europa.eu/sites/eeas/files/eu_human_rights_guidelines_on_freedom_of_expression_online_and_offline_en.pdf

EDRi writes to EU Commissioner Gabriel about tackling illegal content online (20.10.2017)
https://edri.org/edri-writes-to-eu-commissioner-gabriel-about-tackling-illegal-content-online/

Report on the implementation of Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography (2015/2129(INI))
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A8-2017-0368&language=EN

Parliamentary question E-001772/2017 (12.06.2017)
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2017-001772&language=EN

(Contribution by Joe McNamee, EDRi)

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