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New EU Measures to Tackle “illegal” Internet Content Cause ISPs Concern

Thursday, September 28th, 2017 (12:15 pm) - Score 1,354
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The European Internet Services Providers Association (EuroISPA) has warned that the European Commission’s new plan for tackling “illegal” online content risks forcing internet providers to adopt aggressive filtering and monitoring technologies, which could end up removing legitimate content.

The EC has today proposed a range of new “guidelines and principles” that aim to increase the “proactive prevention, detection and removal” of “illegal” content inciting hatred, violence and terrorism online. Few could argue with the noble intentions of this position and anything that rids the online world of such horrific content should, on the surface, be considered a good thing.

In response the EC has proposed common tools to “swiftly and proactively detect, remove and prevent” the reappearance of such content.

The Proposals

* Detection and notification:
Online platforms should cooperate more closely with competent national authorities, by appointing points of contact to ensure they can be contacted rapidly to remove illegal content. To speed up detection, online platforms are encouraged to work closely with trusted flaggers, i.e. specialised entities with expert knowledge on what constitutes illegal content. Additionally, they should establish easily accessible mechanisms to allow users to flag illegal content and to invest in automatic detection technologies.

* Effective removal:
Illegal content should be removed as fast as possible, and can be subject to specific timeframes, where serious harm is at stake, for instance in cases of incitement to terrorist acts. The issue of fixed timeframes will be further analysed by the Commission. Platforms should clearly explain to their users their content policy and issue transparency reports detailing the number and types of notices received. Internet companies should also introduce safeguards to prevent the risk of over-removal.

* Prevention of re-appearance:
Platforms should take measures to dissuade users from repeatedly uploading illegal content. The Commission strongly encourages the further use and development of automatic tools to prevent the re-appearance of previously removed content.

Under this plan the EC expects internet providers to proactively implement their guidelines, which is something that will be monitored over the next few months. However if the commission decides that not enough is being done then they’ve also threatened to impose legislation to force the “swift and proactive detection and removal of illegal content online” (this work will be completed by May 2018).

Andrus Ansip, VP for the Digital Single Market, said:

“We are providing a sound EU answer to the challenge of illegal content online. We make it easier for platforms to fulfil their duty, in close cooperation with law enforcement and civil society. Our guidance includes safeguards to avoid over-removal and ensure transparency and the protection of fundamental rights such as freedom of speech.”

Vera Jourová, Commissioner for Justice, added:

“The rule of law applies online just as much as offline. We cannot accept a digital Wild West, and we must act. The code of conduct I agreed with Facebook, Twitter, Google and Microsoft shows that a self-regulatory approach can serve as a good example and can lead to results. However, if the tech companies don’t deliver, we will do it.”

The trouble with all this is that commercial broadband ISPs and online content providers make for a lousy internet police force. Content providers in particular face the same impossible challenge to their resources as a real-world police force does.

For example, in the online world it’s common for a website run by just a handful or less of people to reach thousands or even millions of visitors and this makes manual validation of every piece of user submitted content impossible, which forces such providers to adopt automated solutions (may not be affordable for smaller services).

Unfortunately such filters are just as likely to stifle free speech as they are to tackle nasty content. Lest we forget that there’s the very problem of how you define “hatred” and “terrorism” online in the first place and then separate it from related content that may include criticism of the same subject, as well as satire, the right to cause offence, political free speech and so forth (context is vital).

EuroISPA Statement

The guidelines endorse the trend that has seen policymakers across Europe force online intermediaries to play judge, jury and executioner with regard to online content control. As EuroISPA has consistently argued for 20 years, such privatised enforcement undermines due process and natural justice, a key underpinning for the enjoyment of fundamental rights.

Such core values would be further frustrated by any move towards a notice & staydown regime (a possibility the guidelines leaves open), whereby Internet intermediaries would be forced to undertake ex ante monitoring and filtering third-party content upload on their networks.

Today’s guidelines fail to appreciate the reality that while the Internet is a global public sphere that empowers citizens and grows economies, standards of illegality are defined on a country-by-country basis. This creates a major dilemma for Internet service providers (ISPs), as they are simply unable to properly assess the context-dependent legality of content – in this regard it is worth stressing that the overwhelming majority of Internet infrastructure companies in Europe are SMEs.

The need for clear and specific judicial guidance on whether a piece of content is illegal is particularly important in the context of so-called ‘controversial content’, as such content can often be presented in non-local languages and framed in varying political and cultural contexts (e.g. parody, free expression, hate speech, etc).

Without this judicial clarity, ISPs are trapped between the risk of failing to properly identify illegal content and the risk of engaging in excessive censorship, thus undermining the fundamental rights of their users. The overwhelming majority of citizens use the Internet for its inherently empowering characteristics. And in that context, we must ensure that structures are in place such that ISPs’ efforts to remove illegal content do just that, and not more.

On the flip side the EuroISPA’s call for policy action to ensure that “illegal” content on the Internet is properly policed within the framework of due process (courts etc.) is all well and good, although the historic problem has always been that the courts simply cannot keep up with the amount of content being generated by billions of people.

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Mark Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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11 Responses
  1. Avatar Mike

    And they wonder why we want to leave…

    • Avatar Dude Lebowski

      Yes they (still) do. And this is hardly a good reason – if anything, the UK government is much worse at “internet management” with their wanton censorship, surveillance and site blocking all in the name of fighting terror and saving the innocence of children. But you just go ahead and enjoy that confirmation bias, if it makes you happy. My guess is, it doesn’t.

    • Avatar Mike

      It’s a great reason because even if the UK government censors the internet more, we have the ability to vote them out, with the EU it’s a one way ticket to hell.

  2. Avatar Peter

    As @mike says.
    If we do not like our government and its policies we can vote them out.
    Can @Dude please explain how the UK might “vote out” the EU commission who can change UK law by merely issuing a directive to which the UK ‘HAS’ to comply.

    This is exactly the sort of thing that led to the leave vote.

    Mind you this is nothing the EU’s digital commissioners once said he wanted us all to log on to all comment type sites using our government issued ID and post under our real names by compulsion -all attached to that ID.
    Should go down well!

    • Avatar James

      It’s very simple – we engage in lawmaking within the EU and make change. Like we did just fine for the last few decades. The EU has been a great moderating influence on successive governments who want to pursue radical (read: idiotic) paths with regard to the government.

      _All_ the UK governments have wanted more power, censorship and control over the internet. Tories and Labour alike both desperately argued for more invasive laws and we have laws today that violate globally-accepted standards for human rights to privacy (which are being fought in the EU courts, quite rightly).

      The Investigatory Powers Act, RIPA and the increasingly dated CMA are all fine examples of shockingly broad and over-reaching legislation, the IPA and RIPA having caused significant damage to the UK technology industry. IPA in particular makes it impossible to trust UK-built security equipment, ISPs, or software services, since equipment vendors and service operators can now be compelled to comply with practically any request from the Home Office so long as a judge signs it off (and to date, tens of thousands of requests under DRIPA/IPA are approved, none rejected).

      The Tories pushed that through and Labour voted in favour. The Lib Dems, when they were briefly in power, opposed movement towards more internet censorship and government over-reach in this sector. Lib Dem and some independent peers in the House of Lords attempted to block the IPA but failed to do so in the end.

      Practically, who are Leave voters going to vote for to stop this sort of lawmaking? They’d have seen much more moderate, sensible and balanced legislation which protected the right to free speech by remaining in the EU. On a technical level, reading this, the guidance is targeted at platform operators, not network operators – the EU does not want to intrude on the neutrality of carriers, and so avoids many of the perils of over-broad censorship. This is a good thing. It also acknowledges that local government and rules around content should prevail, also a good thing. Overall it’s quite balanced, I’d say.

      David Davis, Brexit secretary, who opposed some of the legislation passed in the UK (none of which were in response to EU Directives), used EU human rights laws as the argument by which to take the government to court (in the European Court of Justice) over them. The ultimate Leave voter knew that the EU was in favour of personal liberty over absolutist control by government. Leave voters who voted Leave to take back control were bloody idiots, and as a young(ish) person working in telecoms who had been planning to live here all my life, they’re welcome to the mess they’ll be retiring in. I’m off to Sweden.

    • Avatar Mike

      @James

      You totally dodged his question.

  3. Avatar James

    You are quite right Mike, I hadn’t answered that because I assumed that everyone knew that we could vote on MEPs who can raise issues with the commission and voting mechanisms (as we have done in the past, and gotten change) and that our government appoints our own member to the commission. Obviously you can’t get rid of other country’s commission members but that’s because at the end of the day the EC and EU are collaborative projects with other countries.

    • Avatar Mike

      Why on earth would you want to replace our current government with something less democratic unless you’re a communist?

    • Avatar Peter

      The latest “gem” from the EU commission is a draft directive that requires all people capable carrying vehicles which involve some method of non human propulsion MUST be fully insured at all times….even if they only ever stay on private land.

      So that mean your sit-on lawn mower in your garden is going to have to be insured. As will electric assist pedal cycles, golf buggy’s, fork lift trucks, farm tractors, mobility scooters…
      This of course also covers any car anywhere regardless of where it is – which will effectively put an end to the UK’s SORN concept of off road vehicles not needing to be insured, and mean all car collections will all have to be insured even if they never move and never have.

      The EU commission simply cannot help itself can it?
      They really do not know when to stop!

  4. Avatar Richard

    The biggest problem with all these laws and regulations is the enforcing of them. If the EU is so determined to remove some content from the internet then they should A) show which content is objectional B) provide the personnel to remove it C) ensure that the new internet police force is qualified to determine which content should be removed and D) make sure that there is a process in which the decisions made by the internet police can be reversed

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