EU Tech Policy Brief: June 2017

This is the June issue of CDT’s monthly EU Tech Policy Brief. It highlights some of the most pressing technology and internet policy issues under debate in Europe, the US, and internationally, and gives CDT’s perspective on them.

Code of Conduct Progress Report: Need for More Transparency, Judicial Oversight, & Appeals

The second progress report on the Code of Conduct on Countering Illegal Hate Speech Online (CoC), signed by Facebook, Microsoft, Twitter, and YouTube in May 2016, was delivered in early June on the basis of the work of NGOs and public bodies in 24 Member States. The Commission is pleased with companies’ more rapid response to requests and higher percentage of takedowns (59 percent), both of which are unsurprising results given the political pressure and media attention. However, the concerns we expressed in connection with the first report published in December 2016 remain the same. There is still no way to know whether the content taken down is in fact illegal, and courts should make these decisions. It is notable that only about 10 percent of notifications made to companies have also been made to law enforcement authorities. The CoC should (1) ensure full transparency as to the criteria used to flag and possibly remove content; (2) enable courts to carry out the assessment of illegality of content; and (3) include clear provisions for remedy to individuals whose speech is targeted and removed from these platforms unjustly.

NetzDG: CDT Joins Civil Society & Industry Call on Commission to Act

The draft German social media law, known as the “NetzDG”, threatens to fine large social media platforms if they do not react swiftly to take down certain types of content. It is our view that the draft law would greatly undermine freedom of expression and information. Leading experts Professors Wolfgang Schulz and Gerald Spindler have also strongly criticised this draft law. We joined other civil and human rights organisations, and industry organisations representing the technology companies, in a joint letter calling on the European Commission to ensure compliance of the draft German law with EU law, including the EU Charter of Fundamental Rights. We requested that the Commission use its authority to raise objections vis-a-vis the German government, but this outcome seems unlikely. The law may be adopted by the German legislature as early as the end of June.

AVMS Directive: Council Extends Broadcast Rules to Social Media

Discussions on the review of the Audiovisual Media Services (AVMS) Directive are moving forward, albeit not in the right direction. On 25 April, the Culture and Education (CULT) committee of the European Parliament adopted its Report, and most recently the Council of the EU adopted the AVMSD’s general approach. While the Commission, in its proposal amending the AVMSD, aims to apply the current rules covering television and video-on-demand services to video-sharing platforms (VSPs) such as YouTube, both the Parliament and Council have extended the scope to social media services that make a “significant amount” of audiovisual content available to users. We believe that applying the same restrictions to VSPs and social media sites will have significant consequences for free expression online, and the proposal should recognise these differences. As pointed out rightly by seven Member State delegations in a joint non-paper addressed to the EU Council Presidency, there is a need for an assessment of the legal, administrative, and market impacts of the expansion of the rules before going ahead. On a more positive note, the CULT committee sent out a clear message against upload filtering of content by stating that measures imposed on VSPs by Member States “should not lead to ex-ante control or filtering of content”.

Copyright in the DSM: “No” to Upload Filtering, “Yes” to Ancillary Copyright

On 8 June, the Internal Market and Consumer Protection (IMCO) Committee adopted its opinion on the Copyright in the Digital Single Market Directive proposal. We previously commended the Committee Rapporteur, MEP Catherine Stihler, for proposing sensible solutions to the problems we consider to be of greatest concern, particularly her proposal to delete Article 11 on the ancillary copyright for press publishers. However, the Commission’s initial text on Article 11 unfortunately remained in the IMCO Opinion. On the bright side, the Committee reached a rather reasonable compromise regarding Article 13, on which IMCO has joint responsibility with the leading Legal Affairs (JURI) Committee. It adopted the text proposed by MEP Michal Boni, the rapporteur of the Opinion by the Civil Liberties (LIBE) Committee, which does away with the most problematic elements of the Commission’s proposal, namely the filter for content uploaded by users. As highlighted in the recent letter we co-signed with over 60 civil society organisations and trade associations, Article 13 would impose private censorship on EU citizens.

DSM: Upcoming Initiatives on Notice-and-Action of Illegal Content

On 10 May, the European Commission published the mid-term review of its Digital Single Market (DSM) strategy. The Commission conducts several dialogues with online platforms on tackling illegal hate speech and sale of counterfeit goods online, and aims to ensure better coordination of dialogues with platforms. In particular, one of the Commission’s aims is to “move forward with the procedural aspects and principles on removal of illegal content – notice-and-action – based on transparency and protecting the fundamental rights”. Early on, when the DSM Strategy was announced, we expressed support for initiatives on notice-and-action and have since argued this is a far better approach than the misguided elements of the DSM Copyright and AVMS Directives. We continue to argue in favour of this approach as the appropriate avenue for the challenges that copyright reform and the review of the AVMS Directive are trying to address.

Law Enforcement Access to Data: EC to Propose Legislation

The European Commission’s (EC) task force responsible for the EC’s strategy on e-evidence and cybercrime published a non-paper and a technical document for discussion by Justice and Home Affairs (JHA) Ministers on 8 June. The non-paper was based on the stakeholder consultations conducted by the EC’s Directorate-General Home since January 2017, which CDT has participated in along with technology companies, associations, and NGOs. Based on the EC’s recommendations, JHA Ministers gave the EC mandate to move swiftly to improve cooperation between authorities and service providers, such as single points of contact and standardised forms for e-evidence requests. A majority of Ministers also expressed “support for a European Commission legislative proposal regarding direct cooperation with service providers and setting EU common conditions and minimum safeguards for direct access to data by authorities from a computer system”. CDT will provide input into the Commission’s work going forward to push for strong privacy safeguards, judicial oversight, and transparency.

Proposed E-Privacy Regulation: CDT Analysis, Parliament and Council Discussions

In our analysis and commentary on the EC’s proposed ePrivacy Regulation, we support the Commission’s ambition to update and modernise the existing ePrivacy Directive, given the evolving internet-based technologies and business models for providing electronic communications services. It is reasonable to apply similar confidentiality and privacy obligations to communications services, regardless of the underlying technology. However, our concerns are that the proposed legislation is too complex and broad in terms of scope, and too prescriptive in terms of mandating specific software (notably browsers) to perform in very particular ways. We fear that some of the solutions the Commission is proposing will not contribute to creating an environment where people can use a plethora of innovative digital communications tools with full transparency and control of personal data being processed. We also argue for stronger safeguards for public-sector access to communications data, and an affirmative right for users and providers to encrypt digital communications. We see some of these concerns raised by Members of the European Parliament and Member State officials working on the ePR proposal.

CDT Joins European Observatory on Infringements of IPRs

We recently joined the European Observatory on Infringements of Intellectual Property Rights (IPRs) as a stakeholder representing civil society. The Observatory acts as an information centre to support the protection and enforcement of IPRs in the EU. One of its objectives is to “provide evidence-based contributions and data to enable EU policymakers to shape effective IP enforcement policies”. While the Observatory consists of a network of experts and specialist stakeholders composed of public- and private-sector representatives, civil society groups have been underrepresented and unable to balance the influence of rightsholders in the Observatory. For this reason, and in view of the current discussions on EU copyright reform and the Commission’s ongoing work on the “follow the money” approach, we want to help bring a stronger civil society voice to these debates.

CDT Welcomes New Board Members

In May, CDT added three new members to its Board of Directors: Alan Davidson, Edward W. Felten, and Philippa (Pippa) Scarlett. Alan Davidson was most recently the Director of Digital Economy at the U.S. Department of Commerce and Senior Advisor to the Secretary of Commerce. Edward W. Felten is the Robert E. Kahn Professor of Computer Science and Public Affairs at Princeton University, and the founding Director of Princeton’s Center for Information Technology Policy. Last but not least, Philippa (Pippa) Scarlett most recently served as the Deputy Intellectual Property Enforcement Coordinator in the White House, developing and coordinating intellectual property enforcement policy across the U.S. federal government. A warm welcome to them!