[IRP] Fwd: [Expression] FoE Implications of EU Electronic Commerce Directive

[Ben Wagner]

Dear IRPers,

this debate started on the FoE Coalition mailing lists yesterday and I wanted to give IRP members who are not on the FoE-Mailing list the opportunity to participate in this debate. 

Any contributions to the debate by IRP members are much appreciated.

Best,
Ben

P.S. The text below is slightly reduced for brevity/consistency, the full debate can be found in the mailing list archives here: http://mailman.ipjustice.org/pipermail/expression/2010-October/subject.html


> Let me second Malcolm's statement below. The 2000 E-Commerce Directive is weaker and vaguer than its American counterpart, and as Mr. Turk observed has been undermined somewhat by certain decisions. I wonder whether it is possible for its "safe harbors" to be strengthened. 
> 
> Milton Mueller
> 
> 
>> I believe the protections from liability for intermediaries in the
>> E-Commerce Directive is crucial to the effective protection of freedom
>> of expression online. There are powerful interests that would like ISPs
>> to be heavily involved with deep packet inspection, scanning all
>> communications for material that could be suspected of infringing their
>> interests, and the E-Commerce Directive is the main piece of European
>> legislation fending that off. Even if you don't think of such scanning
>> as intrinsically objectionable on privacy grounds (and I'm sure most of
>> the people on this list will) taking automated action on such a basis
>> infringes both freedom of expression and protections for a fair hearing,
>> the presumption of innocence etc.
>> 
>> I must declare an interest, in that I work for not one but two trade
>> associations for ISPs. That said, one of the main reasons I chose to
>> work for the ISPs was my strong personal belief that it is crucial for
>> freedom of expression in modern society to ensure the networks aren't
>> forced into become prior restraints.
>> 
>> I would strongly urge you to submit a reply to this consultation, and
>> when you do to make a broad case that includes chilling effects, the
>> crudity of automated decisions, the lack of due process, and the
>> crushing effect of filtering mandates on technical innovation and the
>> creation of new forms of speech. All these factors (and others) are
>> cumulative, and would remove the effective right to freedom of
>> expression even while leaving a legal pretence of a guarantee for the
>> right in place.
>> 
>> Kind Regards,
>> 
>> Malcolm.
>> 
>> Malcolm Hutty | tel: +44 20 7645 3523
>> Head of Public Affairs | Read the LINX Public Affairs blog
>> London Internet Exchange | http://publicaffairs.linx.net/
>> 
>> 
>>> Dear all,
>>> 
>>> I think contribution by FoE would be highly valuable for reasons herein below.
>>> 
>>> Firstly, the directive sets the the exemptions of the liability of intermediaries in European Union (Section 4, Articles 12 to 15) ? similar to regulations in DMCA, CDA in U.S.
>>> 
>>> Article 12 states the liability principles for ?mere conduits?, article 13 for ?cachers? and article 14 for ?hosts?. E.g. for host, the directive today states that as long as the ISP does not know about the illegal contents and after gaining such knowledge, removes or disables access to the material immediately, the ISP shall not be considered liable for the illegal third party content.
>>> 
>>> Article 15 states that the member states are forbidden from laying down the general obligation for ISPs to monitor third party content or to actively seek illegal content.
>>> 
>>> As of today the member states in EU have gone in various directions ? e.g. the court in Italy finding 2 Google executives liable for hosting a video of a autist boy being bullied; the court in Estonia finding the news portal liable for comments by readers.
>>> 
>>> These approaches are not in conformity with the directive and European Court of Justice judgment from 23.03.2010 in the case of Google Adwords in which the court stated that just because Google receives payment, guides its? clients in choosing the adwords etc does not mean that it should not benefit from immunity clauses in directive (e.g. article 14).
>>> 
>>> Today, different lobbying groups (e.g. fir intellectual property enforcers etc) have set their mind to the new legal framework where ISPs would always be co-responsible. This in practice means that whatever right is infringed in Internet, ISP will be liable and the person has no need to look or try to identify the real bad-doer.
>>> 
>>> For freedom of expression this would have serious implications.
>>> - the ISP?s would not be inclined to make their means available for free media, hosting etc, if they are co-responsible for all, that third person may express;
>>> - there will be less innovation for free services regards to FoE due to the fact that no ISP is willing to offer these;
>>> - there will be less free arena for FoE.
>>> 
>>> This is not the outcome we want.
>>> 
>>> Thus, we, as members of FoE community should act on this matter (at least the members with connection to EC J). The easiest way is to just think how are the ISPs and their liability regulated in your country and we could write it down in one document.
>>> 
>>> Regards,
>>> Karmen Turk
>>> Doctoral student (ISP liability)
>>> University of Tartu
>>> 
>>> 
>>>> Dear FoE coalition,
>>>> 
>>>> In the last few days I have spoken to several coalition members who have voiced concern over the EU consultations on the Electronic Commerce directly. It has been repeatedly suggested that various issues related to FoE such as intermediary liability may become part of the directive while being considered from a purely commercial perspective.
>>>> 
>>>> Just to give you a rough idea what we are talking about: The ?Electronic Commerce? Directive aims to remove barriers to the establishment of providers of information society services and to the cross-border provision of on-line services in the internal market, therefore giving both to businesses and citizens legal certainty.
>>>> 
>>>> I'd like to hear more opinions from other people on the list. Is this concern shared by other members and if so how would you suggest we proceed? As the consultation is open until 5 November there may be time for the coalition to contribute some form of response to it, then again this only makes sense if we agree on that there are indeed FoE issues at stake.
>>>> 
>>>> Best regards from Florence,
>>>> Ben
>>>> 
>>>> ---
>>>> 
>>>> Expression mailing list
>>>> Expression at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/expression
>>> 
>> 
> 


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