(No.111) Protecting the rule of law in the online environment

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Workshop Theme: 
Security, Openness and Privacy
Theme Question: 

Security, Openness and Privacy - Questions 1,4; Emerging Issues - Question 1,2 This workshop has significant relevance to the questions: Security Openness and Privacy Question 3 Security Openness and Privacy Question 2 Security Openness and Privacy Question 5

Concise Description of Workshop: 

Stakeholders with an interest in restraining certain types of content and conduct seek to co-opt Internet intermediaries as their enforcement agents, using measures such as notice and takedown, network blocking, and other techniques. At the heart of such procedures lie two implicit claims: that the law proscribes certain content or conduct, and that the content or conduct in question does in fact fall within the proscribed category. Both of these claims are in principle capable of refutation: the person responsible for the material or conduct in question may claim either that they are legally entitled to do the thing they are accused of, or that although they wouldn’t be entitled to do it, they didn’t do it. For example, in a copyright dispute, the publisher may either admit their content is a copy of somebody else’s material, but claim legally protected use, or may deny their content is a copy. Internet intermediaries protest that they are unable to evaluate legal defences and factual disputes, leading them to either reject proposals for intervention partnerships with complainant groups (frustrating both those groups and the aspirations of policy-makers to foster non-legislative measures) or assume that all allegations by reputable mass-scale submitters of complaints are well founded (thereby denying one party a fair hearing). Further, the development of intervention procedures through negotiation between Internet intermediaries and regular submitted of complaints lacks structures to support consideration of fundamental rights in general, and the “rule of law” / “due process” qualities in adjudication procedures in particular. Structures may not be present to provide systematic assurance that such extra-judicial measures meet essential minimum requirements for transparency, independence, consistency, non-discrimination and other necessary standards. Together, these shortcomings lead to charges of systematic bias in extra-judicial processes for intervention against Internet misuse by Internet intermediaries. This workshop will ask participants to describe what criteria they consider constitute adequate mechanisms for adjudication of disputes and complaints, whether there can be public confidence in processes developed with the input of stakeholders that are themselves one of the parties to complaints, and what structures they recommend be adopted in the design of complaint resolution procedures to respect the legitimate interests of all parties
Agenda of the workshop
- Introductory round
- When is the delegation of enforcement powers to intermediaries suitable/possible?
- Have intermediaries a role in evaluating legal defenses or factual disputes?
-  Current procedures for notifying and acting on illegal content hosted by online intermediaries
- To what extent the rule of law and due process help in adjudication procedures?
- What is the impact on Internet users' rights?
- Public confidence: how to avoid losing it?
- Conclusions

Backgroung Paper: 
Organiser(s) Name: 

This workshop is jointly organised by the European Commission, and EuroISPA, the industry body representing the interests of Internet Services Providers in Europe, reflecting the multi-stakeholder principle.

Submitted Workshop Panelists: 

The workshop planned as an interactive session with a moderated panel of experts. 50% of the time will be allocated to opening statements from the experts, in which they will be asked to address the indicated questions. 40% of the time will be allocated to interventions from the floor, and 10% of the time for closing statements. The following experts will be invited (listed in suggested speaking order):  
Affiliation: International organisation with role in human rights, e.g. Council of Europe; alternatively, academic Stakeholder group/role: Legal expert Questions to answer: What are the key characteristics of adequate mechanism for resolving dispute and complaints that content and/or conduct is illegal or infringes the rights of a third party?
Affiliation: Intellectual property rights holder: e.g. IFPI, MPAA etc Stakeholder group/role: Private sector complainant (civil complaints) Questions to answer: When you ask Internet intermediaries (ISPs, YouTube etc) to adopt non-judicial process for taking action against infringing content, what procedures do you adopt (or would you accept) to provide independent scrutiny of the claims you make in lodging individual complaints?
Affiliation: Law enforcement authority Counter-terrorism or anti-extremism specialist Stakeholder group/role: Public authority alleging serious criminal offences, but where defence to allegations may invoke claims of legitimate free speech, especially of a political or religious nature Questions to answer: When you ask Internet intermediaries (ISPs, YouTube etc) to adopt non-judicial process for taking action against infringing content, what procedures do you adopt (or would you accept) to provide independent scrutiny of the claims you make in lodging individual complaints?
Affiliation: EuroISPA Stakeholder group/role: Internet intermediaries (networks and online services) Questions to answer: What do you do to balance the interests of complainants against those accused of Internet misuse, to uphold the law while protecting fundamental rights?
Affiliation: European Digital Rights, or Electronic Frontier Foundation Stakeholder group/role: Citizen’s interest (fundamental rights of defendant party to complaint) Questions to answer: Under what conditions can Internet intermediaries help to uphold the legitimate rights of third parties and the public interest in suppressing crime? 
Affiliation: European Commission Stakeholder group/role: Policy makers charged with balancing rights Questions to answer: What systematic and structural measures can be put in place to ensure all legitimate interests are respected in non-legislative measures such as public-private partnerships and intra-industry agreements?
- Council of Europe, Lee Hibbard (confirmed)
- Malcom Hutty, EuroISPA (confirmed)
- Catherine Trautmann, MEP (confirmed)
- Eric Pigal, EESC (confirmed)
- Harry Temmink, DG MARKT, European Commission (confirmed)
- Frederik J. Zuiderveen Borgesius, Universtity of Amsterdam (confirmed)
- Rashid Hajili; Media Rights Institute Azerbaijan (confirmed)
- Katitza Rodriguez, EEF (confirmed)
- Chris Marcich, President and Managing Director of MPAA-EMEA (confirmed)
- Giuseppe Vaciago, Criminal Lawyer (confirmed)

Name of Remote Moderator(s): 
Camino Manjon, DG CONNECT, European Commission
Reported by: 
Maciej Tomaszewski
A brief substantive summary and the main issues that were raised: 

Lee Hibbard (Council of Europe) highlighted the importance of the application of human rights framework in online environment. He emphasised that human rights are also applicable in cases involving only private parties.
Chris Marcich, (President and Managing Director of MPAA-EMEA) said that copyright enforcement should focus primarily on commercial websites infringing copyright and on taking down infringing content from websites. However, he would not favour targeting individuals in copyright enforcement.
Claudio Ruiz (Derechos Digitales) said that there is a common understanding that human rights apply in online environment, and therefore the main question is how to strike a balance between different conflicting rights. This question is essential as in particular nowadays, more threats to human rights are observed.
Eric Pigal, (EESC) mentioned important issues to be considered in online environment, namely (1) applicable law, (2) jurisdiction, (3) forensic connections
Giuseppe Vaciago (lawyer and LEA expert) said that the proper application of rule of law in online environment require first the definition of serious crime. Then, it should be clearly said that law enforcement should focus primarily on those crimes. 
Rashid Hajili (Media Rights Institute Azerbaijan) presented a case of the journalist's imprisonment in Azerbaijan. ECHR considered this case as violation of freedom of expression. He said that this is an example how criminal law may restrict human rights. Therefore, he said although it is important that governments intervene in online environment, this intervention might not bring positive effects in countries with low protection of the rule of law.
Harrie Temmink (DG MARKT, European Commission) presented the context of the liability regime in the E-commerce Directive which is the basis for Notice and Action (N & A) procedures within the EU. Secondly, he presented how the European Commission is preparing to introduce improvements in these procedures. He ensured that those improvements are in conformity with the rule of law and consulted with all relevant stakeholders.
Catherine Trautmann, (MEP) reminded that any limitation of fundamental rights should be narrowly defined and prescribed clearly by law. However, current legal framework is not that clear and many legal terms are not well defined. Also, she highlighted that the effective protection of fundamental rights require the proper definition of the burden of proof on the parties to the proceeding.
Malcolm Hutty, (EuroISPA) said that a major issue for service providers was distinguishing between content that is claimed to be illegal and content for which a legitimate legal defence may apply. In any case, a clear and easy to apply procedure is needed to address the procedure of dealing with illegal content.
A participant to the panel argued that N & A procedure does protect adequately fundamental rights as it is shaped in way that intermediaries have interest in taking down content immediately in order to be exempted from liability. Harrie Temmink provided detailed explanations highlighting, that according to the E-commerce Directive intermediaries are required to take down content only if they are convinced about the illegality of the content.
Other participant to the panel presented some problems related to three strikes law as introduced recently in New Zealand, including (1) the creation of additional regime of liability for copyright infringement, (2) unjust reversal of burden of proof, and finally, (3) the lack of possibility to genuinely enforce three-strike. This proves more generally that current copyright framework tries to prevent acts which are impossible to be stopped. Lee Hibbard answered that this problem should be seen as part of broader perspective of Internet freedom notion. Chris Marcich repeated that he advocates targeting large commercial-scale infringers of copyright.
Finally, one of the participants to the panel said that it is still important to ensure safeguards for the protection of human rights in N & A procedure to avoid chilling-out effect. Therefore, a clear obligation of full transparency and accountability should be imposed on intermediaries. Catherine Trautmann supported this idea.

Conclusions and further comments: 

While the participants had each brought their own perspectives and particular concerns to this discussion, it was noted that there was consensus amongst those present on some fundamental principles for protecting the rule of law in the online environment.

  1. There was support for the proposition that the rule of law and the right to procedural fairness is invoked when intermediaries intervene to suppress content and activity online on the grounds that it is illegal or infringes the rights of a third party.
  2. There was support for the proposition that while illegal material and behaviour should be addressed, legal material and behaviour should not be suppressed, which implies a need for mechanisms to distinguish the legal from the illicit.

By synthesising these propositions, it therefore follows that it is necessary for the mechanisms to distinguish legal from unlawful content and behaviour to be ones that ensure the safeguard of fundamental rights of the party notifying illegality of the content, as well as of the content owner.