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