EU Wants to Sneak in a Mini-ACTA by the Backdoor - Update

Even after ACTA was rejected by the European Parliament on 4 July this year, the European Commission was still refusing to admit that the treaty was misguided and dangerous. To this day, it's not clear what it is planning in terms of trying to...


Even after ACTA was rejected by the European Parliament on 4 July this year, the European Commission was still refusing to admit that the treaty was misguided and dangerous. To this day, it's not clear what it is planning in terms of trying to bring it back in another form, or by negotiating some kind of ACTA Lite with the other signatories.

But one thing is certain: ACTA is only one of the many ways in which the Commission is trying to push through its copyright maximalist agenda. And there is no clearer proof of that than the horribly-named consultation "A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries".

Here's the background to the consultation from the response form, which can be filled in online or offline [.pdf]:

The E-commerce Directive provides a framework for the cross-border provision of online services in Europe. It includes so-called exemptions from liability for online "intermediary service providers". In particular, it provides that online service providers may not be held liable for illegal content that they "host" on condition that:

the provider does not have ‘actual knowledge' of illegal content and is not ‘aware' of facts or circumstances from which the illegal content is apparent; or

the provider, upon obtaining such knowledge or awareness acts ‘expeditiously' to remove or disable access to the content (Article 14 E-commerce Directive).

This rule forms the basis for so-called "notice-and-action" (N&A) procedures. These procedures start whenever someone "notifies" a hosting service provider about illegal content on the internet. The procedures are concluded when an online intermediary acts against the alleged illegal content. Acting may take the form of removing or disabling access to the illegal content.

You might think that all sounds reasonable enough, but as a seasoned observer of the European Commission's persistent attempts to bend reality to fit its own agendas, Monica Horten, points out, that's not the case:

the Commisson appears to be trying to re-write history. It says that Article 14 forms the basis for Notice and Action procedures. That was certainly not the intention of Article 14.

The E-commerce directive, with its provisions for mere conduit and exemptions on the liability was the result of a political compromise thrashed out in 2000 between the ISP industry and others, such as the copyright industries, who wanted it to incorporate a notice and takedown regime. However, that notion of notice and takedown was explicitly rejected.

However, it is implied in the Consultation introduction that the Commission wants to Amend Article 14 in order for it to become the basis of Notice and Action.

So this is what the whole "clean" Internet exercise is really about: presenting notice and action as a fait accompli, and getting respondents to discuss the details without questioning the underlying assumption.

That's deeply problematic because it effectively brings in by the backdoor one of the most contentious sections of ACTA. Article 27 sought to "to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement", which was about turning ISPs and website hosts into private police forces for media companies though notice and action schemes and "pro-active" measures – censorship. That theme is explicitly picked up in the "clean" Internet consultation, where question 22 asks:

In your opinion, should hosting service providers be protected against liability that could result from taking pro-active measures?

The whole consultation is based on the presumption that service providers should be taking a more pro-active role in policing the Internet, the quid pro quo being that they will then receive immunity from liability. And this is where the dishonest nature of the world "clean" in the consultation's title becomes apparent.

"Clean" obviously stands in opposition to "dirty", and "dirty" implies things like pornographic content, particularly child pornography, universally regarded as the "dirtiest" content of them all. So the consultation frames itself in terms of keeping the Internet "clean", which implies keeping out the really bad stuff like child pornography. Clearly, nobody is going to object to that.

But when you read through the questions, it's evident that what is really being discussed here is how to tackle unauthorised sharing of copyright material – not least because most countries already have systems for dealing with extreme content. For example, one section explains:

Hosting service providers, across Europe, react differently when they receive notice about content. For instance, some ensure a quick feedback to notice providers by sending a confirmation of receipt when they receive a notice and informing the notice provider when the requested action has been taken. Others do not. Similarly, some online intermediaries consult the provider of alleged illegal content whenever they receive a notice and offer the content providers the opportunity to give their views on the allegation of illegality concerning the content (the so-called "counter-notice"). Other providers do not consult the content provider.

That describes the typical situation for handling unauthorised copies of copyright material, not taking down child pornography, which doesn't involve opportunities to "give their views", for obvious reasons.

Similarly, another question notes:

Civil rights organisations complain that hosting service providers sometimes take down or disable access to legal content. They claim that some hosting service providers automatically act on notices without assessing the validity of the notices. In this context, the CJEU has held that blocking of legal content could potentially undermine the freedom of expression and information.

This, of course, is precisely why such notice and action schemes are inappropriate for allegations of copyright infringement: they can be misused far too easily, taking down material that is not infringing. Moreover, the scale of the takedown notices in the US – Google receives over 250,000 a week – makes policing that kind of abuse well-nigh impossible. If the EU brought in a similar system here, it would only be a matter of time before similar levels of takedown notices were attained – and similar levels of abuse.

What's particularly sickening about the current consultation is the blatant way the European Commission has attempted to plant the idea that anyone against this new notice and action approach is implicitly against the "clean" Internet, and therefore probably in favour of child pornography. It's becoming the standard political trick to use against opponents of repressive measures to try to paint them as friends of paedophiles and terrorists. The fact that the European Commission isn't prepared to have an honest discussion about the use of notice and action, but resorts to this kind of moral blackmail, shows that it is frightened of hearing what EU citizens really think.

It's important to note that this consultation was initiated before the crushing vote against ACTA in July; the Commission's evident desire here to impose ACTA-like liabilities on service providers could make for an interesting re-run of that power struggle in the light of the refusal by the European Parliament to countenance precisely these kind of measures in Article 27 of the treaty. But it would be better if it never came to that, and if this pernicious proposal were stopped now rather than fought later.

Notice and action is already happening for extreme content such as child pornography (see the excellent European Commission "Working Paper" reviewing this whole area [.pdf]), and nobody could object to that. But applying it to trivial copyright infringements is hugely disproportionate, and should be explicitly forbidden given the collateral damage it causes not just to the functioning of the Internet, but to civil liberties, not least the presumption of innocence and freedom of speech.

I therefore urge you to make your voice heard about this shabby attempt to sneak through oppressive measures that will adversely affect how the Internet works and impose significant burdens on businesses using it. Unfortunately time is running out: responses need to be in by 5 September. Fortunately, filling in the form is relatively quick and easy, even if the questions are heavily loaded in favour of the European Commission's desired results.

Update: The deadline has been extended to 11 September, so please make use of that opportunity if you haven't made a submission yet.

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