Pressure for private Internet policing

Yesterday’s DCMS round table with rights holders and Internet companies to discuss online copyright infringement was attended for the first time by the Open Rights group and Open Digital yesterday. This does not make it a transparent or open process, where everyone can submit evidence and concerns: but it does at least allow us to make exactly this point. That’s an improvement, and means we can show that the agenda of this process needs something of a reset.

Unfortunately, the truth is that the agenda is likely to have a significant impact on the proposed Communications Bill. That means further pressure may well be applied to intermediaries to “tackle” copyright infringement, while the market liberalisations needed are not really being discussed.

The meeting yesterday focused on initiatives that either the government or rights holders have pushed to reduce online copyright infringement. The agenda was:

“Topical updates:

• DEA update
• MoJ / Judiciary update (not discussed)
• Site-blocking
• Search Engines
• Revenue approaches: Credit Cards / Advertising”

The basic problem here is that there is no real evidence base to establish:

• What the problem is (for example, types of behaviour, impact on revenue, licensing or under-supply)
• What the means of addressing the problems are (for example, changes to market supply, individual behaviour, prosecuting site owners, asking for takedown by hosts or disruption through intermediaries)
• How difficult the different methods are
• What the consequences of using the different methods are.

Instead, rights holders have picked a set of strategies primarily targeting intermediaries. From a rights holder perspective, making intermediaries do enforcement work looks attractive:

• People in the middle are responsible companies with a lot at stake.
• They are a “pinch point” where everyone has to go. Everyone needs an ISP, a pay-for website needs a payment system, all sites use DNS, nearly all content is found via search engines or social networks

There are three principles behind our concerns about this. The first is freedom of expression and the powers given to remove, block or interfere with information online. Second is the need for proper due process. Third is the importance of privacy and the rules governing when, why and how people can access personal data. From this perspective of our digital rights, targeting intermediaries is a most risky strategy.

1. Intermediaries are not responsible for their users’ actions
They are not the people doing wrong.
2. Intermediaries are vulnerable to claims of liability 
They will err on the side of caution and remove content is there is any legal risk
3. Making intermediaries act on mere suggestion of wrongdoing removes due process
Intermediaries are not in a position to judge guilt. They should not be forced to decide, especially not if a mistake threatens their financial interests.
4. Intermediaries may be able to see information, but may not be entitled to examine it or hand it over. Without a presumption of privacy, in the digital age, we risk creating a world in which little or nothing is private at all.

There were some positive signs at the meeting, however. Google are looking for a rights holder partner to study the most obviously offending sites to understand what the enforcement options really are. And the process is now a little more open than it was. Hopefully we’ll continue to help force the process to be more open, rigorous and balanced. 

MEP Marietje Schaake’s ‘Self-Regulation’ event in Brussels

While I was at the DCMS roundtable in London, Peter was on his way to an event at the European Parliament that was focused on exactly the same issues. The MEP Marietje Schaake, somewhat a champion of digital rights, hosted the discussion, which featured talks from European policy making officials, EDRi’s Joe McNamee, Malcolm Hutty from EuroISPA and Chris Ancliff, General Counsel from Warner Music Group. The event was subtitled ‘Should online companies police the internet?’. Joe McNamee’s presentation is available here, there’s a good write-up of the event here, and you can watch a recording of the whole thing here.

There were a couple of points worth noting given the earlier UK roundtables. First, the representatives from EU policy making stressed they prefer the term ‘co-regulation’. It’s worth remembering that what is being proposed involves private actors regulating *other* people’s behaviour and access to information, not (just) their own. Second, Nicole Dewandre, an advisor on Stakeholder Issues at DG Information Society, laid out some ‘best practice’ ideals for co-regulation. They involved openness, transparency and a multi-stakeholder approach – very much the kind of things we’ve been asking for in the UK.

Malcolm Hutty finished the range of problems, including bank fraud, child abuse images, terrorism and hate speech, which are leading to demands being placed on ISPs to police content. He asked policy makers think carefully about whether intermediaries are the best placed to tackle these issues, and that they quickly define what level of severity of problem requires what kind of response from intermediaries, given the consequences not only for their businesses, but also fundamental rights.

These are, after all, questions about the power to interfere with the distribution of and access to information. That’s why it’s such a fundamental and important issue, and why we’re continuing to push back.