Privatised enforcement series D: Anatomy of a self-regulation proposal

By EDRi · May 4, 2011

This article is also available in:
Deutsch: [Serie: Privatisierung der Online-Strafverfolgung – Teil D |]

How does it happen that an industry or a sector of industry signs up
“voluntarily” to arbitrarily punish their consumers and to restrict freedom
of speech? One of the most interesting and telling examples is the ongoing
“public/private dialogue to fight online illegal activities”.

In November 2009, the European Commission Directorate General for Justice
Liberty and Security (the relevant units are now part of DG Home Affairs)
invited a variety of Internet companies (but no civil society
representatives) to a meeting to discuss, in very vague terms, the issue of
illegal content online – concentrating on child abuse, terrorism and
racism/xenophobia. In that meeting, no particular problem was identified
that needed to be solved and various existing approaches were presented to
fight such content.

At that meeting, the European Commission offered to prepare draft
recommendations to form the basis of future discussions. This text would
formally be the Commission’s “understanding” of industry’s views and not,
legally speaking, a proposal from the Commission. As a result, the
Commission’s proposals would not need to go through either any internal
approval systems in the Commission or, being a non-legislative proposal,
through the Council of the EU or European Parliament. This loophole permits
the Commission to make proposals to industry informally, but with the threat
of legislation permanently in the background.

The Commission subsequently produced the set of recommendations (see link
below), which listed a variety of circumstances where “Internet providers”
could “remove or disable access” to content, without any judicial oversight
and without any clear obligations for public authorities to act against the
criminally illegal content – a public/private dialogue where the public has
to do nothing and the private does everything, outside the democratic
process and the rule of law.

The Commission then organised another meeting in May 2010, at which EDRi
asked to participate. During that meeting, EDRi repeatedly asked for
information on what specific problems with illegal content hosted in Europe
had been identified that this project sought to address. No response was
forthcoming. Industry participants echoed this call and asked why, if the
Commission is only talking about hosting providers, it did not make
reference to hosting providers rather than “internet providers” in its
proposed text. No answer was forthcoming. At the end of that event, the
Commission promised to take the concerns into account and to produce a
revised set of recommendations. Meanwhile, EDRi and the European ISP
Association (EuroISPA) prepared a joint letter explaining the minimum
requirements to be respected.

In December 2010, another draft recommendation set was put forward by the
Commission, which was virtually identical to the one in May. A day-long
meeting was organised where the same questions were asked by EDRi and by
industry, with the Commission again failing to provide any information
regarding the nature of the problem that the process was supposed to solve.
After the meeting, EDRi joined with both EuroISPA and the European Telecoms
Networks Operators Association (ETNO) to again put the concerns and demands
of both civil society and industry in writing. Six months later, the only
response that the letter has received is that it would not be answered
before June.

This whole process has been a solution in search of a problem, exploiting a
loophole where individual services in the Commission can make proposals of
major importance to freedom of communication without any bureaucratic or
democratic oversight using the pretence that they are not Commission
proposals at all.

EDRi/EuroISPA letter (07.09.2010)

Commission recommendations (last 4 pages are relevant)

(contribution by Joe McNamee – EDRi)