EDRi and EuroISPA attack EC's demands for notice and takedown

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Deutsch: [EDRi und EuroISPA gegen Forderung der Kommission nach Notice&Take-down | http://www.unwatched.org/node/2088]

EDRi and the European ISP Association (EuroISPA) have prepared a joint civil
society/industry position on the European Commission’s draft informal
recommendation for the takedown of websites which have been accused of being
illegal.

The recommendation’s scope is nominally restricted to child abuse websites,
terrorism and racism. However, the proposal already represents a “mission
creep” of aspects of policies used for the removal of child abuse websites
and, therefore, further “mission creep” into other areas can be considered
inevitable.

The Commission’s proposals cover three different scenarios:

a) requests for takedown of websites from law enforcement authorities, legal
injunctions and formal legal orders;
In this case, the Commission proposed that ISPs should delete websites
without further deliberation.

b) notification by law enforcement authorities, complaint hotlines or “other
body duly authorised or tasked under national law to monitor Internet
content”;
In this case, the Commission also proposed that ISPs should delete the
websites in question without any further deliberation.

c) notifications from citizens.
In this case, the Commission proposed that ISPs should delete the websites
in question if they were convinced that they are illegal.

The Commission goes on to suggest that Internet hosting providers could
change their terms and conditions to give themselves more legal security
when deleting websites.

In the joint letter, the associations argued that the assumption was that
the websites were illegal whereas, in fact, no judicial ruling would have
been made in most cases before the site was deleted. Furthermore, no
subsequent judicial ruling has even been foreseen in this “cooperation”.

The letter goes on to question why the proposal was made without any
analysis of existing notice systems, the possible negative impact on
subsequent investigation and prosecution of the criminals participating in
such illegal activities (would these takedowns be undertaken instead of
proper investigations/prosecutions?), the size of the problem and the
changing practical implementations of the definitions of terrorism and hate
speech.

EDRi and EuroISPA pointed out the legal obligations of the EU Member States
with regard to the right to communication as defined in the European
Convention on Human Rights and the International Covenant on Civil and
Political Rights and also reminded the Commission of its own assessment of
restrictions to these rights. For example, in the impact assessment for the
child exploitation Directive, the Commission points to “the requirement that
the interference in this fundamental right must be prescribed by law”.

The letter concludes by stating that “finally, and surprisingly, in the
context of ‘public private cooperation’, there is no obligation on public
authorities to take responsibility for the enforcement process and to then
investigate and prosecute the individuals behind the sites that are the
subject of take down notices. The draft recommendations place the legal
burden and the onus for the most urgent action on private companies, passing
the risk from public authorities to private companies. This omission means
that the draft recommendations risk not only infringing the fundamental
rights of the accused, but also could seriously compromise the fight against
illegal content through the legitimate, established means of law
enforcement. Specifically, there is a real danger that enforcement agencies
could exploit providers’ terms of service to act against suspected legal
infringements outside formal legal structures, undermining transparency,
public accountability and legal certainty.”

EDRi/EuroISPA letter (9.07.2010)
http://www.edri.org/files/090710_dialogue_NTD_illegal_content_EuroISPA-EDRI.pdf

EC’s draft recommendations for Public-Private Cooperation (04.2010)
http://www.edri.org/files/Draft_Recommendations.pdf

Child exploitation impact assessment (25.03.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriSer.do?uri=SEC:2009:0355:FIN:EN:PDF

(Contribution by Joe McNamee – EDRi)