security & surveillance

While offering vast opportunities for exercising and enhancing fundamental rights, the digital environment also offers both opportunities to commit new offences and to impose new restrictions on our online rights. Measures such as filtering, blocking and untargeted surveillance are often easy to implement and extremely difficult to rectify. EDRi therefore works to ensure that all security and surveillance measures are necessary, proportionate and implemented based on solid evidence.

23 Feb 2018

Final Copyright “compromise”: Upload filters for everyone but Google & Co

By Maren Schmid

On 21 February, the rapporteur of the European Parliament’s Committee on Legal Affairs (JURI) Axel Voss issued his suggestion for a “compromise” on the Copyright reform, on which the Committee will vote in April.

As expected, Voss’ proposal maintains the highly controversial Article 13, which forces web services to impose a “censorship machine” to filter all uploads from every user in the EU. Ironically, Voss sells his proposal as a “compromise” by adding one rule which will ultimately reinforce the dominant positions of platforms like Facebook or YouTube while non-profit platforms such as Wikipedia would be forced to employ upload filters.

Voss suggests that platforms that allow users to upload content are not obliged to install any pre-filtering technology, if they obtained a licensing agreement with rightsholders. Big platforms like YouTube or Facebook are already concluding such licence agreements. Facebook, for instance, recently announced the signing of a licensing agreement with Sony/ATV Music Publishing which oversees a catalogue of more than three million songs. Thanks to Voss’ proposal, the big platforms could easily avoid the obligation to implement upload filters.

Platforms like Wikipedia or also open source hosting providers like Github, however, do not have such licensing agreement. For good reasons: Their service exists to allow collaborative creation and recombination of open-licensed contents. Forcing these platforms to pay license fees or to install upload filters like Voss’ proposal foresees would be a grave interference in their freedom to conduct a business. To sum up, Voss’ “compromise” would leave most websites the choice between the devil and the deep blue sea.

In line with the original extreme position of the Commission, Voss proposes that these rules should apply to platforms where users upload “significant amounts” of content. What makes the proposal so malicious is the alleged possibility to eliminate dangers for the freedom of expression through licensing agreements. Yet, the reality is that these licensing agreements are only a realistic option for the biggest platforms.

It has long been clear that these proposals, which aim to strengthen copyright law as a response to the dominance of Google & Co are highly likely to end up achieving the contrary by reinforcing their position. However, it has never been as clear as it is now with Voss’ proposal.

Besides that, there are two other pieces of logical and legal comedy in the text:

1) The “compromise” says that “service providers shall also respect users’ rights under the Charter of Fundamental Rights of the European Union”. Despite being, apparently, a qualified lawyer, Voss seems unaware of the scope of applicability of the Charter, as defined by its Article 51.1:

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.”

Internet services providers have no obligations whatsoever under the Charter of Fundamental Rights of the EU.

2) The “compromise” explains that users should have a redress mechanism if their rights are restricted AND that “should not require the identification of individual users and the processing of their personal data”. What Voss fails to explain is how individual users can complain if the provider has not stored any personal data about the content that they have unfairly deleted. Sadly, the “compromise” is littered with such contradictions and misunderstandings of basic legal principles.

In late April, the JURI Committee will vote on Voss’ proposal. If the Copyright proposal receives a majority of votes in the JURI Committee and later also in European Parliament plenary, the final decision will depend on the votes of the Member States, in the Council of the EU.

This article is partly based on an article published on Netzpolitik.org (CC BY-NC-SA 4.0): https://netzpolitik.org/2018/copyright-update-2-upload-filter-fuer-alle-ausser-google-facebook-co/

Proposal for a Directive on Copyright in the Digital Single Market (21.02.2018)
https://juliareda.eu/wp-content/uploads/2018/02/20180221-Draft-CA-on-Article-13_v1.pdf

Deconstructing the Article 13 of the Copyright proposal of the European Commission
https://edri.org/files/copyright/copyright_proposal_article13.pdf
Facebook and Sony/ATV Music Publishing Announce Licensing Agreement (08.01.2018)
http://variety.com/2018/biz/news/facebook-and-sony-atv-music-publishing-announce-licensing-agreement-1202656832/

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22 Feb 2018

In the making: The largest internet filter Europe has ever seen

By EDRi

European policy makers are working on the largest internet filter we’ve ever seen. That might sound a tad dramatic, but it’s really not an overstatement. If the proposal is accepted, websites such as Soundcloud, eBay, Facebook and Flickr will be forced to filter everything you want to upload. An algorithm will be the boss over which of your uploads will be seen by the rest of the world and which won’t.

Why haven’t I heard about this before?

This internet filter is tucked away in a proposal for new European copyright regulation. Internet filters can’t and shouldn’t be used to regulate copyright. They don’t work. But there’s a much bigger problem: once it’s installed, the internet filter can -and will- be used for a myriad of other purposes. We bet you anything that policy makers are gleefully awaiting the internet filter in order to use it in their latest battle, be it fake news, terrorism or undesirable political opinions.

Main issues

There are a lot of reasons not to want an internet filter. These are the three most important ones:

  1. It’s an attack on your freedom of expression. You will have to get permission to speak.
  2. Filters like these tend to make lots of mistakes and it will be up to you to fight them. (Spoiler alert: you can’t.)
  3. Platforms will be incentivised to avoid risk – at the cost of your freedom.

What can you do?

The following weeks are crucial. Tweet or e-mail your representatives that are part of the JURI committee. On 26-27 March they will be deciding on the upload filter. Use the hashtag #CensorshipMachine or #filterfail and let your representatives know you’re against the internet filter (Article 13)! You can find the Members of the European Parliament (MEPs) relevant to you here:

We’ve written some tweets to inspire you, but feel free to compose your own!

  • .@MEP Stand up for our freedom of expression online. Please oppose the #censorshipmachine in the #copyright Directive proposal.
  • .@MEP Stand up for our privacy online. Please oppose the #censorshipmachine in the #copyright Directive proposal.”
  • .@MEP Show that you care about culture and free speech: oppose the #censorshipmachine in the #copyright Directive proposal.”
  • .@MEP Internet filters don’t work. Please delete article 13 of the #copyright Directive proposal! #filterfail

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21 Feb 2018

General monitoring of communications to block “undesirable” content

By Foundation for Information Policy Research

Increasingly, demands are made that “something be done” about “undesirable” and “harmful” material on the internet: online child abuse images and other criminal pornography, “extremism”, “incitement to violence”, “hate speech”, – and more recently, “fake news”. Organisations representing holders of intellectual property (IP) rights similarly demand that measures be taken to prevent the sharing of IP-protected materials online. There is a widespread assumption that the internet giants (Google, Apple, Facebook, Twitter) have the means and resources to meet these demands, and should be forced to do so.

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The means put forward to identify such materials all resolve about “automated” or “algorithmic” filtering: computer programs that are supposed to be able to single out such illegal or otherwise objectionable content from legal, non-objectionable content, while it is being uploaded to the relevant platforms. They work to some extent in relation to already-identified material that has been assessed as illegal, such as previously spotted online child abuse material: The known materials are “hashed” and the hash can be used to note those very same pictures when being uploaded, and they can then be blocked.

However, it is much more difficult to use such tools to try and identify text or images that may constitute objectionable or even illegal content, that is to say where some judgment is required. The same photo may appear on a site promoted by a terrorist group and by a news organisation. In relation to “hate speech”, “incitement to violence” and “fake news”, it is necessary to parse the nuanced meaning of human communication, or to detect the intent or motivation of the speaker, before a judgment can be made.

Even when the standard is clear, the judgment may be difficult. Depictions of people having sex with animals are clearly defined as illegal in UK law. But does this mean all historical or even recent depictions of Leda and the Swan (and other depictions of mythological god/human-beast encounters) must be blocked? (Leda and her swan are currently not blocked from Google searches.)

In relation to IP-protected material, there is the special, major problem of limits to and exceptions from such protection, for example in relation to fair comment or reporting, criticism, parody, caricature and pastiche, or to facilitate access to people with disabilities. The scope and application of those exceptions are difficult to determine in individual cases by lawyers and courts – and well beyond the capabilities of so-called “artificial intelligence” and natural language processing (NLP) tools.

Unfortunately, companies keep trying to sell snake oil tools to governments, such as a tool which, it is claimed, “can detect 94% of Isis propaganda with a 99.99% success rate in tests” – and politicians keep buying such impossible claims.

Now the European Commission is proposing that precisely those tools are to be used by information society service providers to detect copyright-protected materials and “prevent” them from being made available on their sites. Article 13 of the proposed Copyright Directive, effectively requires all information society service providers to use such tools (while disingenuously only “suggesting” this as an example of possible tools).

The truth is that for complex, context-dependent assessments, including in relation to copyright, such tools do not work, which means they are fundamentally unsuited for the claimed purpose: They will lead to unacceptably high rates of

  • false positives (wrongly blocking entirely legal material, or copyright-protected material that is used legally under an exception),
  • or false negatives (failing to detect real illegal or copyright-protected material),
  • or both.

The proper statistical assessment of such tools cannot be captured in simple “accuracy” or “success” rates (such as are claimed for the above-mentioned UK tool): In pattern recognition science, the outcomes should be measured in terms of precision and recall, rather than “accuracy”.

Moreover, such tools can of course be used to preventively detect, and then block, any pre-determined content. They are a gift to any government wanting to suppress the free flow and sharing of information on the internet. Not surprisingly, EDRi calls them “censorship machines”.

Automated algorithmic filtering tools perform by their very nature precisely the kind of “generalised monitoring” of the communications of whole swathes of populations (such as all users of Buzzfeed, or Vimeo, or Flickr, or Facebook, or Dropbox, to name but a few). According to the judgment of the Court of Justice of the European Union, this violates the very “essence” of the right to private life which is protected by the EU Charter of Fundamental Right. Automated algorithmic filtering tools are therefore considered fundamentally, constitutionally unacceptable and unlawful.

In sum: Such tools are both inappropriate and unsuited for their stated aim (they cannot achieve that aim in relation to context-dependent content) and constitute major and disproportionate – and thus unlawful – interferences with the fundamental rights of the people in the populations against which they are used.

This article summarises a longer paper, released on the EDRi website: https://edri.org/files/copyright/20180213-Korff-GeneralisedMonitoringOnlineContent.pdf (PDF).

Home Office unveils AI program to tackle Isis online propaganda (13.02.2018)
https://www.theguardian.com/uk-news/2018/feb/13/home-office-unveils-ai-program-to-tackle-isis-online-propaganda?CMP=Share_iOSApp_Other

Copyright Directive Document Pool
https://edri.org/copyright-reform-document-pool

The ghost in the machine
http://www.pelicancrossing.net/netwars/2017/06/the_ghost_in_the_machine.html

Civil society calls for the deletion of the #censorshipmachine (16.10.2017)
https://edri.org/civil-society-calls-for-the-deletion-of-the-censorshipmachine/

Infographic: Article 13 will harm European businesses, NGOs and consumers who upload and share content online on these services
http://edima-eu.org/wp-content/uploads/2018/01/Services-affected-by-Article-13-Infographic.jpg

(Contribution by Douwe Korff, EDRi member Foundation for Information Policy Research – FIPR, United Kingdom)

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21 Feb 2018

Don’t make your community Facebook-dependent!

By Bits of Freedom

Facebook is to invest tens of millions in “community leaders” – on the condition that the community leader uses the “Facebook family of apps and services”. EDRi member Bits of Freedom argues for reducing the role of Facebook in your community.

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Facebook is currently under fire due, among other things, to the furore surrounding fake news and the co-option of Facebook by terrorists. At a time when numerous critics have concluded that Facebook divides us, Mark Zuckerberg now sees the platform’s future in its “groups”. Therefore, the company is investing in a friendlier image.

One thing the company is doing, is trying to make its services safer for users, through the expansion of its “Community Safety Team” and the launch of new functionalities, including a designated area for groups’ rules of behaviour. On the face of it, a welcome development: it is important to reflect on how platforms are designed. Which functions serve which people? How can clever design at early stages of product development minimise the amount of objectionable content being posted?

Of course, measures that make Facebook safer to use, are welcome. Still, this development leaves us feeling uneasy. By investing in “community leaders”, Facebook is meddling with society’s most essential category: its communities. It is an intervention we can do without. These are our prime objections:

Not a neutral conduit: Facebook shapes interactions between you and your community, and between the members of your community amongst one another. Sometimes, it does this explicitly, for example by offering certain functions and not offering others. But it also does this invisibly, by indirectly influencing your decisions, “nudging”. In both cases, the user has little or no insight into how they are being ”guided”, not to mention that they have little or no control.

Facebook controls what may, and may not, be discussed: Do we really want to let our freedom of expression be dependent on the terms and conditions of a multinational corporation? Because it is Facebook that decides what is acceptable and what is not. The company claims it wants to be a “friendly platform” that “brings people together”. That automatically means the prohibition of certain types of statements. In the past Facebook has, for example, considered it necessary to block cartoons of the Turkish president Recep Tayyip Erdogan – they clearly didn’t bring people together enough! YouTube, in turn, deemed it important to label LGBTQ-related content as not family-friendly. Platforms are under increasing pressure to combat the spread of “undesirable content”, a term now being applied to everything from copyrighted material to extremist propaganda and from unpopular opinions to hate speech. If the current trend continues, we can expect to encounter censorship on platforms with increasing frequency in the future.

Around the world, communities are doing important work and are taking a stand concerning something they are passionate about. In doing so, they utilise the means available to them. It pays to look critically at those means. Do they work equally well for all members of the community? And where large platforms are involved, how can you prevent them from becoming the gatekeeper between the members of the community?

Bits of Freedom struggles with this, too. They choose to use Facebook and Twitter, but with some restrictions: They do not profile individuals through advertisements, nor do they upload pictures of people or invite them to events. In addition, they invest in channels of communication they control, such as their newsletter and email groups. Finally, they organise gatherings offline. They realise their choice of communication channels work better for some people than for others. For some, they might not work at all. If we want to increase our ability to rally support for our issues, we need to find more diverse ways of engagement. Where do we start?

(Contribution by Evelyn Austin, EDRi member Bits of Freedom, the Netherlands; Translation by Nick Lakides)

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21 Feb 2018

India set to have the world’s strongest net-neutrality protections

By Guest author

On 28 November 2017, India’s communications regulator, the Telecom Regulatory Authority of India (TRAI), recommended several net-neutrality protections be inserted into Internet Service Provider (ISP) licences.

First, TRAI recommends that ISPs should be restricted from engaging in any discriminatory treatment of content or entering into any agreement that has such effect. It states that discrimination, whether based on the sender or receiver of the content, the protocols used or the equipment being used to access the internet, should be prohibited. TRAI also recommends specific rules against blocking, degrading, slowing down or granting preferential treatment to any content. Once these rules are inserted into the ISP licence, any violation could attract a financial penalty, temporary suspension or even termination of the licence itself.

TRAI provides exceptions for reasonable traffic management practices, emergency services, implementation of court orders, measures to protect the integrity and security of the network – but all such practices must still be “proportionate, transient and transparent” to comply.

On the subject of specialised services, TRAI recommends that the rules shall not apply to such services as long as they are “not usable or offered as a replacement” for internet access. Drawing from the Body of European Regulators for Electronic Communications (BEREC) guidelines, TRAI states that the provision of specialised services must not be detrimental to the availability and overall quality of internet access.

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These recommendations will be implemented by the Indian Department of Telecom, the government body empowered to amend the licence agreements that govern all ISPs. In fact, the Department has already publicly agreed to TRAI’s recommendations.

It is worth noting that TRAI has already taken a strong position to ban all forms of zero rating. In 2016, following a highly charged debate with the fate of Facebook’s Free Basics hanging in the balance, TRAI prohibited ISPs from charging discriminatory tariffs for data based on the content being accessed. Once these latest recommendations are implemented, India will likely have the strongest net-neutrality protections globally.

TRAI: Recommendations On Net Neutrality (28.11.2017)
http://www.trai.gov.in/sites/default/files/Recommendations_NN_2017_11_28.pdf

TRAI: Prohibition of discriminatory tariffs for data services regulations (No.2 of 2016) (08.02.2016)
http://trai.gov.in/sites/default/files/Regulation_Data_Service.pdf

Net neutrality: Trai does well to recommend hard-coding it in licence terms (29.11.2017)
http://www.business-standard.com/article/economy-policy/net-neutrality-trai-has-done-well-to-recommend-hard-coding-it-in-law-117112801376_1.html

The long read: The inside story of Facebook’s biggest setback (21.05.2016)
https://www.theguardian.com/technology/2016/may/12/facebook-free-basics-india-zuckerberg

(Contribution by Amba Kak, Mozilla technology policy fellow, India)

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21 Feb 2018

T-Mobile treats everyone equally unequally

By Bits of Freedom

The Dutch national regulatory authority, Authority for Consumers & Markets (ACM), has again decided that the mobile operator T-Mobile does in fact respect European net neutrality rules. EDRi-member Bits of Freedom believes the decision of ACM is short-sighted.

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On 8 February 2018, the regulatory authority published its decision on our objection to its decision on our request for enforcement action against T-Mobile’s service “Data-free Music”. This service was launched shortly after the new European net neutrality rules were introduced. “Data-free Music” allows users to listen to a selection of online music services without using any data from their data plan. This sounds better than it is – and below we explain why. Bits of Freedom asked ACM to enforce the rules because with this service, T-Mobile gives some services preferential treatment. The regulatory authority did not agree with Bits of Freedom. Now, it has also dismissed Bits of Freedoms’ objection to this decision.

ACM thinks T-Mobile treats all online music services equally. For all these services, “the same conditions for joining” apply and therefore T-Mobile is said to not discriminate. This includes the conditions that only online services that are “publicly accessible” and that allow T-Mobile to recognise the IP-address of the service can join.

The conditions T-Mobile sets clearly put certain service providers at a disadvantage, simply because services that do not meet these conditions cannot benefit from the preferential treatment T-Mobile offers. If your online music service is not a public service, tough luck. If your online music service uses peer-to-peer technology, tough luck.

This can’t be what we want: after all, we want similar services to be treated equally. Imagine that T-Mobile decides that only music services with a red logo and at least ten users in the Netherlands may join “Data free Music”. Those conditions hold for all providers. According to the line of reasoning of ACM, those conditions would not be discriminatory. They thereby, however, ignore that certain types of services are excluded on the basis of the very nature of that service or its provider.

Making such a distinction is only allowed if it does not limit the freedom of the end user. For instance, if you were to prioritise video streaming traffic – regardless of the service – over email traffic – regardless of the service.

The European net neutrality rules also aim to ensure “the functioning of the internet ecosystem as a driver for innovation”. However, if providers favour certain services, they limit the freedom of all internet users and hamper innovation. In Europe, a proliferation of different types of subscriptions can already be seen. A brief survey shows that over thirty subscriptions are available that feature zero-rating. In its first decision, the ACM has failed entirely to take this into account.

In their second decision, ACM says that they do not need to look into “the cumulative effect of all zero-rating propositions in Europe” and that the impact of T-Mobile’s service in and of itself is not that large. However, even if this statement was legally valid, it would imply that the European rules are inadequate.

There is a good chance that Bits of Freedom will also challenge ACM’s latest decision. Your freedom online is too important to leave it in the hands of a regulatory authority with tunnel vision. The next step would be to go to the judge. This leaves two possible outcomes: either the judge agrees with the complaint and calls ACM to order, or it becomes clear that the European net neutrality rules need to be further strengthened. Either enforcement becomes stricter, or the rules become stricter. Another battle in Brussels that might take years is already being prepared.

T-Mobile treats everyone equally unequally (only in Dutch, 08.02.2018)
https://www.bof.nl/2018/02/08/t-mobile-behandelt-iedereen-even-ongelijk/

Dutch NRA: T-Mobile may continue to violate net neutrality (18.10.2017)
https://edri.org/dutch-nra-t-mobile-may-continue-to-violate-net-neutrality/

Dutch ban on zero-rating struck down – major blow to net neutrality (17.05.2017)
https://edri.org/dutch-ban-on-zero-rating-struck-down-major-blow-to-net-neutrality/

(Contribution by Rejo Zenger, EDRi member Bits of Freedom, the Netherlands)

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21 Feb 2018

Copyright reform: The Bulgarian Presidency strikes back

By Anne-Morgane Devriendt

Article 13 is a key issue in the discussions on the “Proposal for a Directive on Copyright in the Digital Single Market” that have been going on since 2016. It proposes requiring services that store content on the internet for users to “take measures, such as content recognition technologies, aimed at preventing the upload of infringing content”.

According to the European Commission, and contrarily to what you might think, it does not mean that the Article 13 provides for a general monitoring obligation. You see, according to the Commission, online platforms do not have to use content recognition technologies, they just have to prevent the upload of copyright infringing content by their users. How they can do that without resorting to general monitoring is unclear, as shown by the suggestion of the European Commission to monitor content using content recognition technologies.

The Bulgarian Presidency of the Council of the European Union, on the other hand, is more straightforward. It proposes to target online platforms that would have to comply with the new obligations by regrouping them under a new notion of “online content sharing service” (OCSS). These would be defined as companies whose profits rely on the organisation and presentation of user-uploaded content that is copyright protected. These OCSS would then be liable under Article 13.

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Alternatively, the Bulgarian Presidency proposes to create new liability rules only for “service providers that communicate to the public”. In practice, OCSS would benefit from this “targeted limitation of liability” if and only if they do not “take effective measures to prevent the availability on its services of these unauthorised works” or if they do not “act expeditiously to remove or disable access to the specific unauthorised work [and] prevent its future availability”. Upload filtering, in other words

It is worth noting that the Commissioner responsible for the file, Andrus Ansip, the Prime minister of Estonia, supported the Anti-Counterfeiting Trade Agreement (ACTA), which had the same mandatory-not-mandatory approach to filtering the internet.

Discussion paper on Article 11 and Article 13 (06.02.2018)
http://data.consilium.europa.eu/doc/document/ST-5902-2018-INIT/en/pdf

Ansip reiterates support for ACTA (13.02.2012)
https://news.err.ee/103191/ansip-reiterates-support-for-acta

Smashing the law without breaking it: A Commission guide (07.02.2018)
https://edri.org/smashing-the-law-without-breaking-it-a-commission-guide/

(Contribution by Anne-Morgane Devriendt, EDRi intern)

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21 Feb 2018

European Ombudsman shares EDRi’s concerns on Council transparency

By Ana Ollo

On 13 February 2018, the European Ombudsman Emily O’Reilly published a Recommendation regarding the transparency of the legislative work of the Council of the European Union. Her strategic inquiry, which involved the examination of the Council’s work around the legislative course of the General Data Protection Regulation (GDPR), among other files, showed that the Council’s general practice not to publish its legislative documents constitutes maladministration.

In March 2017, the European Ombudsman opened a strategic inquiry aiming at examining the practices of the General Secretariat of the Council in producing, circulating and publishing documents tabled in meetings of Council preparatory bodies. It was motivated by the perceived lack of opportunity for EU citizens to participate in the legislative activities of the Council. The European Ombudsman examined the answers given by the Council to its initial questions, as well as the results of its public consultation, to which EDRi responded. Furthermore, she inspected three Council files, which had been completed in 2016: the GDPR; the Directive on accessibility of websites and mobile applications of public sector bodies, and the Decision on tackling undeclared work.

The Ombudsman’s inquiry led to the conclusion that the Council is not respecting the right of EU citizens to participate in the entire EU legislative process –which includes the right to hold their elected representatives accountable–, nor the requirements of Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. This Regulation establishes that legislative documents –“documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States”– must be made directly accessible to the public unless exceptions apply.

The Ombudsman’s Recommendation includes most of the comments we made in our response to the consultation. The European Ombudsman:

  • Considers that “the current widespread and arbitrary practice, of marking most preparatory documents in ongoing legislative procedures as being restricted under the ill-defined designation of “LIMITE”, constitutes a disproportionate restriction on citizens’ right to the widest possible access to legislative documents”, and therefore recommends that the Council adopts “clear and publicly available criteria” for the application of the “LIMITE” status –which should only apply to those documents which, at the point of assessment, are exempt from disclosure on the basis of an exception provided for in Regulation 1049/2001;
  • Notes that the Council’s General Secretariat does not systematically record the positions expressed by Member States in discussions within preparatory bodies, as some States prefer not to reveal their changing positions. However, she points out that changing positions is part of democratic decision-making, and therefore suggests that the Council “proactively and directly” discloses the documents containing the positions of the Member States, in a timely manner; and
  • Finds that legislative documents are not being made “directly and proactively accessible to the public” by the Council, and that there are inconsistencies regarding the extent to which the work of the preparatory bodies is recorded, as well as documentation gaps. In light of the incompleteness of the Council’s public register of documents, the Ombudsman recommends making it user-friendly, by listing all types of documents chronologically –following the example of European Parliament’s Legislative Observatory–, as well as adopting guidelines concerning the types of documents that preparatory bodies produce in the context of legislative procedures and the information to be included in those documents.

European Ombudsman’s suggestions give concrete and substantive indications to the Council on how to facilitate the exercise of the right of EU citizens to actively participate in the EU legislative process. Currently, citizens depend on leaks, published for example on Statewatch.org, their perseverance to access public documents via access to documents requests, or the recently launched fast-track complaint procedure of the European Ombudsman. If the Ombudsman’s recommendations are followed, we would also have fewer headlines from certain media outlets about “leaks” that are only available to their paying customers.

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European Ombudsman’s Recommendation (13.02.2018)
https://www.ombudsman.europa.eu/cases/recommendation.faces/en/89518/html.bookmark

EDRi’s response to the Ombudsman’s consultation (12.12.2017)
https://edri.org/files/consultations/euombudsman_counciltransparency_20171212.pdf

Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (30.05.2001)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14546

(Contribution by Ana Ollo, EDRi intern)

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14 Feb 2018

EDRi’s Press Review 2017

By EDRi

During the past year, our work to defend citizens’ rights and freedoms online has gained an impressive visibility – we counted more than two hundred mentions! – in European and international media. Below, you can find our press review 2017.

JANUARY

09/01 Germany’s plan to fight fake news (The Christian Science Monitor)
10/01 Telecoms firms and internet services like WhatsApp face tougher new privacy rules (Euractiv.com)
10/01 Anti-Piracy: Can It Exist Without Censorship? (Digital Music News)
10/01 Public Domain Project Calls on EU to Abandon Piracy Filter Proposals (TorrentFreak)
11/01 Commission leaves the European Parliament with lots of work to do (eubusiness.com)
12/01 Briefing: Regulating privacy in the age of Big Data (New Europe)
14/01 Werbewirtschaft kritisiert EU-Pläne zur E-Privacy-Verordnung (Deutschlandfunk)
17/01 Yahoo! E-mail Scan Allegations May Test EU Data Transfers (Bloomberg Law: Privacy & Data Security)
24/01 CETA clears crucial hurdle in Parliament’s trade committee (Euractiv.com)
26/01 In Moldova, Civil Society Stands Up to ‘Big Brother’ Law (Global Voices)
30/01 Dänemark: Neues Gesetz könnte zu erheblicher Internetzensur führen (netzpolitik.org)


FEBRUARY

01/02 Türkçe İçeriğiyle Çocuklar İçin Dijital Mahremiyet Kılavuzu (Bigumigu)
01/02 Donald Trump: et maintenant, les données personnelles (Libération)
01/02 Letter on proposal to reform the EU Audiovisual Media Services (AVMS) Directive (Euractiv.com)
08/02 Anti-Whistleblower Provision Buried In Germany’s New Data Retention Law Challenged In The Courts (Techdirt)
13/02 NGOs sign appeal to MEPs to stop CETA (European Public Health Alliance)
13/02 Finissons-en définitivement avec CETA! (Le cercle des libéraux)
15/02 Voller Gummiparagraphen: EU-Anti-Terrorismus-Richtlinie gefährdet Grundrechte (netzpolitik.org)
15/02 MEPs approve EU-Canada trade deal (EurActiv)
16/02 Copyright power matrix (Politico.eu)
16/02 CETA ondermijnt recht op privacy en bescherming van gegevens (DeWereldMorgen.be)
17/02 Il Parlamento Europeo ha allargato il reato di terrorismo – Il Post (Nuova Resistenza)
20/02 Umstrittene europäische Antiterror-Richtlinie verabschiedet (domain-recht)
21/02 Windows 10 privacy settings still worrying European watchdogs (TechCrunch)
21/02 Windows 10 remoteness settings still worrying European watchdogs (Kalen2uTech)
22/02 European Watchdogs: Microsoft Sells User’s Personal Data To Third Parties, Collecting It Thru Windows 10 [REPORT] (University Herald)
23/02 Meet the innovators fighting for your right to privacy online (Wired UK)
28/02 MWC 2017: Wikipedia goes data-free in Iraq (BBC News)
28/02 They’re Your Fingerprints, But Has Someone Hacked A Database To Use That Information? (Huffington Post South Africa)
28/02 Truth Behind Advertising In A Digital Era (iPulse)
02 Joe McNamee “Our Open Web Fellow is helping us bring practical understanding to the political debate.” (Our stories from the Mozilla Network)
02 The 5G policy approach (Pan European Networks: Government – issue 21)


MARCH

01/03 US surveillance law may see no new protections for foreign targets (CSO Online)
06/03 France Sees Sharp Rise in Blocked and De-Listed Websites (Global Voices Online)
07/03 La UE busca blindar el negocio del copyright con una “máquina de censura” (Público)
07/03 EU Internet Advocates Launch Campaign to Stop Dangerous Copyright Filtering Proposal (EFF)
08/03 “Save The Meme” Campaign Protests EU’s Proposed Piracy Filters (TorrentFreak)
08/03 Privacy Shield : les défenseurs des libertés s’inquiètent (Politis)
08/03 ‘Sin memes no hay democracia’, la nueva campaña contra la reforma de la ley de copyright de la UE (Cadena SER)
16/03 Netizen Report: Azerbaijani Bloggers Targeted with Legal Threats, Spearphishing (Global Voices Online)
27/03 Urheberrechts-Richtlinie: Die EU will Copyright-Verstöße stärker filtern als Terror-Propaganda (netzpolitik.org)
28/03 Constituido el Grupo de Trabajo sobre Derechos Digitales de los Ciudadanos (La Moncloa)
28/03 Rechtsausschuss entschärft Oettingers EU-Leistungsschutzrecht (Telepolis)
28/03 El Minetad crea un grupo experto para adaptar los derechos fundamentales al entorno digital (TICbeat)
29/03 The Future of Free Speech, Trolls, Anonymity and Fake News Online (Pew Research Center’s Internet and American Life Project)
31/03 NAFTA Renegotiation Will Resurrect Failed TPP Proposals (EFF)


ARPIL

06/04 #PrivacyShield: MEPs alarmed by US developments that undermine privacy safeguards #DataProtection (EU Reporter)
13/04 1.477 Änderungsanträge: Im Europaparlament beginnt die heiße Phase der Urheberrechts-Richtlinie (netzpolitik.org)
17/04 Trump’s stance on internet privacy puts U.S.–E.U. pact on thin ice (The Daily Dot)
20/04 El seminari d’estiu de la Unipau analitzarà ‘l’ús del terror com a arma política’ entre el 6 i el 12 de juliol (cugat.cat)
20/04 Associação portuguesa de defesa dos direitos digitais avança (Computerworld Portugal)
21/04 Audiovisuelle Medien: Eine EU-Richtlinie wird Video-Anbieter zwingen, massenhaft legale Videos zu löschen (netzpolitik.org)
21/04 Studie des Europaparlaments: Staatstrojaner bergen erhebliche Risiken für das Grundrecht auf Privatsphäre (netzpolitik.org)
25/04 Meet the ‘Avengers’ of the privacy world: The ‘Digital Defenders’ (IAPP – The Privacy Advisor – International Association of Privacy Professionals)
25/04 Euro-Quote und Werbung: EU-Parlament will Videoportalen strengere Regeln setzen (Heise Newsticker)


MAY

10/05 Mit Technik zur Liebe (rbb|24)
10/05 Liebe in Zeiten der Tinderisierung (Wiener Zeitung)
11/05 Microsoft CEO: ‘It’s up to us to help stop dystopian nightmare of Orwell’s 1984’ (International Business Times UK)
11/05 Hakuna Metadata – Warum Metadaten und Browserverläufe mehr über uns verraten als oft vermutet (netzpolitik.org)
16/05 Druck auf Facebook wächst in mehreren Ländern (F.A.Z. PLUS)
18/05 Portabilité des contenus en ligne : première étape vers le marché unique du numérique (CUEJ.info)
18/05 Niederländisches Zero-Rating-Verbot gekippt – Frontalangriff gegen die Netzneutralität (netzpolitik.org)
19/05 Netzneutralität: Niederländisches Gericht kippt Verbot von Zero Rating (Heise Newsticker)
22/05 European Digital Rights – EDRi annual report (Contexte.com)
23/05 Dein Profil aus Twitter-Metadaten: ALTwitter (netzpolitik.org)
23/05 Netzwerkdurchsetzungsgesetz: Bürgerrechtler und Verbände schicken Brandbrief nach Brüssel (iX Magazin)
24/05 EC called on to oppose German hate speech law (Telecompaper (subscription))
25/05 Controversial EU rules could make life trickier for tech groups (Financial Times)
25/05 Controversial EU video rules may cause glitches for US tech giants (Irish Times)
29/05 More han 60 Groups, Companies Urge EU To Step Up Copyright Reform (Intellectual Property Watch)
30/05 Huge Coalition Protests EU Mandatory Piracy Filter Proposals (TorrentFreak)
30/05 ePrivacy: Was die EU dieses Jahr für Privatsphäre und Kommunikationsfreiheit tun kann (netzpolitik.org)
30/05 Pravo na nenavist’: Evrokomissiju prizyvajut za?itit’ svobodu slova ot nemeckogo zakonodatel’stva (RT)
31/05 DIGITAL: Copyright reform only briefly alluded to during Council (Bulletin Quotidien Europe 11798) (Agence Europe)
31/05 Crowdfunding campaign to buy stolen NSA hacking tools from Shadow Brokers (Network World)
31/05 Shadow Brokers : des hackers voulaient se cotiser pour récupérer les outils volés de la NSA (MAJ) (01net.com)


JUNE

01/06 While EU Copyright Protests Mount, the Proposals Get Even Worse (EFF)
07/06 re:publica 2017 – Digitale Liebe und analoges Risiko (netzpolitik.org)
14/06 Privacy-keen Germans push back against plans to ‘duplicate the US data chaos’ (ZDNet)
21/06 ePrivacy-Debatte: Konservativer EU-Abgeordneter vergleicht seine Kollegen mit iranischem Wächterrat (netzpolitik.org)
23/06 EU pressures firms to tackle online terrorism (EUobserver)
23/06 Wie man ein Imperium der Algorithmen beherrscht (netzpolitik.org)
23/06 Germany wants to fine Facebook over hate speech, raising fears of censorship (The Verge)
24/06 Kritik an Verknüpfung von Raubkopien und Terrorismus (Heise Newsticker)
26/06 Ljubye ograni?enija v messendžerah nedopustimy, s?itaet èkspert EDRi (ria.ru)
26/06 Agujeros en la privacidad de las comunicaciones pueden ser usados por terceros (Diario Digital Nuestro País)
28/06 Europäische Bürgerrechtler kritisieren Netzwerkdurchsetzungsgesetz (netzpolitik.org)
28/06 La justicia europea tumba el envío a Canadá de los datos de pasajeros aéreos (netzpolitik.org)
30/06 Germany passes controversial law to fine Facebook over hate speech (The Verge)
30/06 Mal eben den Rechtsstaat outsourcen (Zeit Online)
30/06 Facebook could now be fined $57m over hate speech (Mashable)
30/06 Germany passes controversial law to fine Facebook over hate speech (CNBC)
30/06 Haatbericht niet op tijd verwijderd? Techbedrijf in Duitsland riskeert boete van 50 miljoen euro (Volkskrant)
30/06 Germany tells social-media companies to erase hate — or face fines up to $57 million (Washington Post)
30/06 German Law Requires Companies To Swiftly Delete ‘Obviously Illegal’ User Content (Tom’s Hardware)


JULY

02/07 Facebook, Twitter Could Face Fines of $57 Mln for Failing to Remove Hate Speech (Netralnews)
02/07 Facebook reacts at Germany’s new law over hate speech (TechnoChops)
03/07 Germany Set To Fine Social Media Companies For Not Removing Hate Speech (GC Report)
04/07 Fines to guarantee open internet vary greatly within EU (EUobserver)
06/07 Etyka wed?ug Facebooka (Krytyka Polityczna)
06/07 Germany Passes Law to Fine Social Media Companies that Fail to Remove Hate Speech (Law Street Media)
10/07 Stalemate Continues in Negotiations Over European Copyright Filters (EFF)
12/07 Filtern, Sperren, halbgare Kompromisse: Erste EU-Ausschüsse haben über Urheberrecht abgestimmt (netzpolitik.org)
12/07 Zbli?a si? „podatek od linków” i antypirackie filtrowanie internetu? Unijna reforma zmierza w z?? stron? (Bezprawnik)
13/07 Social media: the Faustian deal (Euronews)
13/07 Intermediaries Could Be Made Liable In EU Copyright Legislation (Intellectual Property Watch)
14/07 Copyright votes in CULT and ITRE: Filtering, blocking & half-baked compromises (EU Business)
18/07 Serious concerns raised about EU Copyright reform (VPN Compare)
18/07 German social media law sparks protest (The Irish Times)
26/07 Top EU court says deal on sharing airline passenger names must be changed (The Irish Times)
26/07 Top EU court says deal on sharing airline passenger names must be changed (The Globe and Mail)
26/07 EU court’s blow to Canada deal marks new hurdle for data laws (Euractiv)
26/07 Top EU court says Canada air passenger data deal must be revised (Reuters)
26/07 EU defends airline data-sharing after court ruling (EU Observer)
26/07 Court grounds EU counterterrorism plan (Politico.eu)
26/07 EuGh-Urteil: Flugpassagierdaten-Abkommen zwischen EU und Kanada illegal (Euractiv)


AUGUST

02/08 e-Privacy Regulation: Good Intentions but a Lot of Work to Do (Foreword to issue 2/17 of the European Data Protection Law Review)
30/08 Joint Statement | Ten Demands for a progressive Trade Policy (European Public Health Alliance)


SEPTEMBER

06/09 EU Presidency Pushing Other Member States for Substantial Internet Surveillance (CircleID)
07/09 European Union Calls For Massive Internet Censorship (The Daily Caller)
08/09 EU pushes for indiscriminate internet surveillance in leaked anti-piracy plan (theinquirer.net)
08/09 Reality check: has Juncker delivered on his promises? (Euronews)
08/09 European Union Considering Intrusive Upload Filter as “Link Tax” Alternative (bleepingcomputer.com)
08/09 POLITICO Brussels Influence: Transparency kick-off (sort of) — Martin ‘No lobbying’ Selmayr — Soil savers (Politico)
08/09 EU anti-piracy plan would introduce internet surveillance and ‘ancillary copyright’, claim campaigners (Computing)
08/09 EU anti-piracy plan calls for Europe-wide ancillary copyright (Kit Guru)
11/09 The importance of Europeans sticking together to achieve a progressive Europe (Open Democracy)
11/09 La multa a Facebook podría haber sido hasta 20 veces mayor en 2018 (Público)
13/09 Kampagne: Öffentliches Geld, Öffentlicher Code (netzpolitik.org)
13/09 EU Copyright Reform Meets Resistance From Stakeholders, Some Governments (Intellectual Property Watch)
13/09 Brief: Software Paid For With Public Money Should Be Open Source, Groups Say (Intellectual Property Watch)
13/09 31 colectivos reclaman una legislación que obligue a las instituciones públicas a utilizar ‘software’ de código abierto (Cuatro)
13/09 Kampagne Public Code: Software für die Verwaltung soll frei sein (Heise Newsticker)
13/09 Nach Wahlsoftware-Debakel. Aktivisten fordern Transparenz bei staatlicher Software (Spiegel Online)
13/09 Freie Software: Wenn der Staat finanziert, dann Open Source (Computer Base)
13/09 PublicCode fordert Freigabe aller öffentlich finanzierten Software (Pro-Linux.de)
13/09 31 Organisationen fordern freie Software in der Verwaltung (golem.de)
13/09 31 colectivos reclaman una legislación que obligue a las instituciones públicas a utilizar ‘software’ de código abierto (La Vanguardia)
18/09 New legal tool on electronic evidence: Council of Europe welcomes civil society opinion (Council of Europe)
18/09 Cross-border access to data: Council of Europe submission (Digital Rights Watch)
19/09 This Is What NGOs Want on E-Evidence From the Council of Europe (Civil Liberties Union for Europe)
19/09 EU Clamping Down On Data Use For Marketing (The NonProfit Times)
19/09 Urheberrechtsreform: Estnische EU-Ratspräsidentschaft wirbt für Upload-Filter (netzpolitik.org)
21/09 The EU Suppressed a 300-Page Study That Found Piracy Doesn’t Harm Sales (Gizmodo)
21/09 EU Buried Its Own $400,000 Study Showing Unauthorized Downloads Have Almost No Effect On Sales (Techdirt)
22/09 EU paid for, then suppressed, study that says piracy doesn’t harm sales (Neowin)
22/09 Piratage : l’UE a caché une étude aux conclusions optimistes (Les Numeriques)
22/09 EU covers up study that reveals piracy doesn’t harm sales (Daily Sabah)
22/09 EU withheld a study that shows piracy doesn’t hurt sales (endgadget)
22/09 The EU found out that piracy doesn’t harm sales and tried to hide it (buzz.ie)
22/09 EC Diagnosed with © ‘Ostrich Syndrome’: Missing Study on Piracy (copybuzz)
22/09 European Union paid for, then suppressed, study that says piracy doesn’t harm sales (Hi-Tech Facts)
22/09 EU Report: Piracy Doesn’t Harm Sales (Hi Tech Beacon)
22/09 The EU Commission couldn’t prove piracy affects sales (Click Lancashire)
22/09 Piracy Doesn’t Harm Sales — EU Report (Newburgh Gazette)
22/09 The EU has suppressed a study that claimed that piracy does not harm sales (The Stopru)
22/09 The EU Suppressed a 300-Page Study That Found Piracy Doesn’t Harm Sales (Gizmodo India)
22/09 EU withheld a study that shows piracy doesn’t hurt sales (Yahoo! Finance)
23/09 EU withheld a study that shows piracy doesn’t hurt sales (Gears of Biz)
25/09 EU held back report that found piracy doesn’t harm music sales (M Magazine)
25/09Studie objednaná EU dokazuje, že mezi pirátstvím a prodejností není souvislost (oTechnice.cz)
25/09 “L’UE a ignoré une étude sur le piratage parce que ses conclusions ne respectaient pas son programme” (Express)
26/09 La Commission Européenne dissimule un rapport qui nie les liens entre piratage et baisse des ventes (Le Soir)
26/09 Kontroverse um Piraterie-Studie der EU-Kommission (Heise Newsticker)
26/09 Net Neutrality Reversal Will Harm Free Speech, International Groups Argue (MediaPost)
26/09 New International Open Letter Warns US Lawmakers over Net Neutrality Rollback (CommonDreams)
26/09 Wat er in het weggemoffelde EU-rapport over cyberpiraterij staat: dit mochten we niet weten (Newsmonkey)
27/09 IGF Austria: Fake-News, Meinungsfreiheit und Sicherheit (Futurezone.at)
28/09 EU wants tech firms to police the internet (EUobserver)
28/09 Commission’s position on tackling illegal content online is contradictory and dangerous for free speech (EUbusiness)
28/09 Illegale Inhalte im Netz: EU-Kommission setzt auf die vermeintliche Wunderwaffe „Upload-Filter“ (netzpolitik.org)
28/09 EU internet policing proposals spark free speech concerns (Deutsche Welle)
29/09 European Commission puts pressure on tech firms to tackle illegal content (Silicon Republic)
29/09 EU Proposes Take Down Stay Down Approach to Combat Online Piracy (TorrentFreak)
29/09 EDRi: Grenzübergreifender Datenaustausch muss mit Grundrechten vereinbar sein (netzpolitik.org)
29/09 European Commission backs takedown-and-stay-down for combating piracy online (Complete Music Update)
29/09 Europe’s digital future on the table at Tallinn summit (rfi.fr)
29/09 Europe’s online piracy crackdown is ‘dangerous for free speech’, activists claim (The Sun)
29/09 European Initiative Says Don’t Curb Objectionable Online Content, U.S. Action Unlikely (Corporate Counsel)
29/09 Europe’s digital future on the table at Tallinn summit (Radio France Internationale)


OCTOBER

02/10 EU internet policing proposals spark free speech concerns (DeathRattleSports.com)
02/10 CopyCamp Conference Discusses Fallacies Of EU Copyright Reform Amid Ideas For Copy Change (Intellectual Property Watch)
05/10 LIBE ePrivacy vote delayed; JURI, ITRE and EDPS weigh in (iapp)
05/10 EU fails to protect free speech online, again (Article 19)
11/10 Who’s afraid of… e-Privacy? (IFEX)
16/10 Over 50 Human Rights & Media Freedom NGOs ask EU to Delete Censorship Filter & to Stop © Madness (copybuzz)
16/10 56 Groups Call For Deletion Of Internet Filtering Provision In EU Copyright Proposal (Intellectual Property Watch)
16/10 Civil Society Groups Call for Deletion of Internet Filtering Provision in EU Copyright Proposal (CircleID)
16/10 57 rights groups back anti-Article 13 letter to the European Parliament (Gears of Biz)
16/10 57 rights groups back anti-Article 13 letter to the European Parliament (theinquirer.net)
16/10 Facebook als Hilfs-Sheriff: Kritik an Auslagerung der Rechtsdurchsetzung im Netz (Heise Newsticker)
17/10 Abandon Proactive Copyright Filters, Huge Coalition Tells EU Heavyweights (TorrentFreak)
17/10 Digital rights groups speak out against EU plan to scan online content (Engadget)
17/10 57 Organisationen fordern: Pflicht für Upload-Filter streichen (Initiative Urheberrecht)
17/10 Digital rights groups speak out against EU plan to scan online content (Yahoo! Finance)
18/10 EU encryption plans hope to stave off ‘backdoors’ (Politico.eu)
18/10 EFF wants ‘illegal’ EU copyright reform deleted (World Intellectual Property Review)
18/10 Bruxelles veut aider les États face aux défis du chiffrement (Contexte)
19/10 Now the digital rights groups write to the EU about safe harbour reform (Complete Music Update)
19/10 EU encryption plans hope to stave off ‘backdoors’ (Baltic Review)
19/10 EU justice committee passes amended ePrivacy directive (Telecompaper)
19/10 Hauchdünne Mehrheit für Kompromiss bei ePrivacy-Reform (netzpolitik.org)
19/10 Euro-parliamentarians say a clear “no” to the anti-privacy lobby (EU Business)
19/10 European lawmakers still hearing conflicting demands over safe harbor in Copyright Directive (RAIN News)
20/10 EU MEPs want stronger privacy rules for Internet-enabled communication services (Help Net Security)
21/10 ePrivacy: Die Lobbymacht der Datenindustrie (netzpolitik.org)
24/10 Sechs Gründe, warum die totlangweilig klingende ePrivacy-Verordnung für dich wichtig ist (netzpolitik.org)
25/10 ePrivacy: Morgen entscheidende Abstimmung über Vertraulichkeit der digitalen Kommunikation (netzpolitik.org)
26/10 How Europe fights fake news (Colombia Journalism Review)


NOVEMBER

10/11 Commission wants to extend law for police data access to the US (EurActive.com)
21/11 Urheberrechts-Richtlinie: Wenig LIBE für Uploadfilter im EU-Parlament (Netzpolitik.org)
28/11 What is net neutrality? (Channel 4 News)
30/11 November 2017 Open Letter on EU © Reform (copybuzz)


DECEMBER

10/12 Net Neutrality’s Holes in Europe May Offer Peek at Future in U.S. (The New York Times)
10/12 Net Neutrality’s Holes in Europe May Offer Peek at Future in U.S. (Latest News7)
11/12 Net neutrality, i paladini Usa temono un “pasticcio all’europea” (CorCom)
12/12 Net neutrality’s holes in Europe may offer a peek at the future in America (Pittsburgh Post-Gazette)
13/12 Want cheaper British car insurance? Mind how you shop (Business Insider UK)
18/12 EU-Zensurmaschine bei Urheberrechtsreform: Zurück zu den Fakten! (Netzpolitik.org)
19/12 French privacy watchdog tells Whatsapp to stop sharing data with Facebook (rfi)
19/12 EU chief responsible for combating ‘hate speech’ deletes ‘hate-filled’ Facebook account (Express)
21/12“Let’s not have democracy anymore, let’s have internet companies” (euroscope)
22/12 What does the repeal of net neutrality mean for development? (Devex)


EDRi’s Press Review 2016
https://edri.org/press-review-2016/

EDRi’s Press Review 2015
https://edri.org/edris-press-review-2015/

EDRi’s Press Review 2014
https://edri.org/edris-press-review-2014/

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13 Feb 2018

LEAK: European Commission’s reckless draft Recommendation on “illegal” content

By Joe McNamee

In September 2017, the European Commission adopted its widely criticisedCommunication on Illegal Online Content.” Now, already, due to political pressure and internal competition between various European Commission services, a new Commission proposal for a Recommendation on the same subject is close to being shared with the Council for unanimous support, albeit not being legally binding. A leaked draft can be found here.

On the basis of no new analyses, no new data and no new pressing issues to be addressed, the leaked draft Recommendation seeks to fully privatise the task of deciding what is acceptable online or not. The only protection for user rights like freedom of expression is an unenforceable hope that certain “adequate safeguards” will be put in place voluntarily by the companies. The draft reminds readers – twice – that the providers have “contractual freedom”, meaning that any such safeguards will be purely optional.

One of the hopes is that the providers will be transparent about the amount of “illegal content and other content” that they delete. The Commission does not even suggest that their aspirational safeguards should be applied to the legal “other content” it mentions. There is literally nothing in law nor practice that would require either EU Member States or the companies themselves to implement a single one of the safeguards listed.

The draft Recommendation highlights one type of content, “terrorist” material, to justify the chaotic proposals. Even though we already have a recent Terrorism Directive and a Europol Regulation dealing with the subject, the Commission seeks to defend its attack on freedom of expression, privacy and the rule of law by using the threat of terrorism. In reality, the repeated references to measures proposed to address copyright and “intellectual property rights” infringements gives an indication of the real driving force behind for such far-reaching measures.

Indeed, in relation to “terrorist content” (undefined, of course), the Commission explains that its proposals could be “complemented” “by certain recommendations”, which are not explained – although this may refer to the setting up of the national internet referral units, whose value has yet to be demonstrated. This, one imagines, is motivated by the need to defend the Commission’s aggressive stance for copyright (mandatory upload filters) compared with its more relaxed approach to alleged terrorist content. Indeed, the probability that the removals will disproportionately target legal content is demonstrated by the numerous references to content being removed on the basis of the companies’ terms of service.

This shows how much the Commission prioritises (in line with the demands of the copyright lobby) the removal of availability over the investigation of removed content. In reality, Member States are very keen on NOT receiving reports of the content being deleted – as proven by the fact that no statistics are kept about any investigations that result from reports generated by Europol’s “Internet Referral Unit” (IRU), according to the Commission itself.

What is worse, the Commission’s draft includes general references to respect of the Charter of Fundamental Rights of the European Union in relation to all of these “voluntary” measures (cf. Preamble, Paragraphs 14, 38 and 39 and Chapter 1, paragraph 1). On top of being very vague and unenforceable in practice, as the European Commission knows very well, the Charter only applies to measures implemented by the European Commission and to Member States applying EU law, NOT to measures that are imposed “voluntarily” by private companies. Even then, it fails to mention one of the most relevant articles of the Charter in this context, Article 52.

The draft Recommendation makes limp references to safeguards, such as counter-notices (to which the provider should give “due consideration”, whatever this may mean). Even here, the Commission only suggests counter-notice procedures for content that is deleted on the basis of illegality, not for content removed under terms of service. In addition, alternative dispute settlement is given preference over court legal proceedings with little explanation. Surprisingly and positively, there is a provision on evaluating the implementation of the measures. However, this is limited to:

  • raw data on the amount and speed of content removal (with no consideration given to the difference between content removed on the basis of terms of service rather than the law);
  • the amount of content removed by upload filters, (with no consideration given to whether the removals were justified or not);
  • safeguards implemented by either service providers or Member States (legal redress, transparency regarding removals of legal content, review processes for implemented measures, etc.);

The Commission proposes no measures to gather any data on the usefulness or possible counter-productive effects of any of these measures for the fight against illegal activity.

For what is worth, here is Article 52.1 of the Charter of Fundamental Rights of the European Union, with the parts that are not respected by the Commission’s Recommendation, either in spirit or due to lack of data, highlighted in red:

Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law [the Recommendation is based entirely on “voluntary” measures] and respect the essence of those rights and freedoms [the Recommendation includes references to deletion of content that is legal and has no review processes to assess its impact on rights and freedoms]. Subject to the principle of proportionality, limitations may be made only if they are necessary [despite the existence of multiple such projects on EU and national levels, the Commission has diligently avoided collecting data that indicates, let alone proves, necessity] and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others [despite the existence of various initiatives like the EU Internet Forum, no data has been collected to indicate necessity and proportionality].

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