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2015 11 13 WS 242 The Manila Principles on Intermediary Liability Workshop Room 9 FINISHED
 Welcome to the United Nations | Department of Economic and Social Affairs

The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 



>> MODERATOR: Good morning, everyone. Let's take our seats so we can commence on time.

So welcome everyone to everyone to this workshop on the Manila Principles On Intermediary Liability. This was launched at RightsCon this year in Manila and that's why they are the Manila Principles.

We have one hour only. It's a shorter workshop than usual, to tell you a little bit about the principles. If you haven't heard of them, you can grab a copy of them on the table on the ‑‑ at the back. The English language version, actually hasn't made its way into the room. There are some copies floating around at the IGF, but I don't have them yet. Hopefully they may make their way here. Otherwise, there are six other languages and also a background paper in English, and also we have some stickers. So please do visit that table at the back, to grab your copies of the Manila Principles and associated paraphernalia and here comes the man of the day, Denny O'Brien with the English language Manila Principles. Thank you very much, Denny. And you can grab the English language from that box and Denny is coming around with them as well.

So without any further adieu, I will pass on to Joyti Panday for the Internet Society India and she will give an overview of the Manila Principles. Thank you very much, Joyti.

>> JOYTI PANDAY: Thanks, Jeremy. Good afternoon ‑‑ well, good morning. So the Manila Principles were developed as a best practices guide for government, industry, and civil society to develop ‑‑ to guide our regimes and frameworks for liability, and the regulation of online intermediaries for online content is to guide these practices. The six principles are ‑‑ and I will quickly read them as we get into the background and how we developed the principles. So there are six principles and each of the principles then subdivide into certain other nuances that need to be considered within each of the best practices that we have identified.

The five principle is that intermediaries should be shielded by law from liable for third party content.

Of the second states that content must not be required to be restricted without an autobiojudicial authority. The third principle states that requests for restrictions of content must be clear, unambiguous and follow due process.

We have then considered the tests of necessity and proportionality, and the fourth principle are states that laws and content restrictions orders need to comply with this test.

The fifth principle goes ‑‑ considers, again, due process, and we have stated that laws and content restriction policies must follow due process. And the final precipitation considers transparency and accountability.

Each principle, as I mentioned earlier has subsidiary points that expand on the theme of each of the principles. And just giving you a brief background on how we develop this. So this is initially civil society initiative and we had electronic Frontier foundation and Internet and society that came together. We also then expanded and we had Ethernet from Kenya and Chile, and ADC from Argentina and South Korea and we had experts and representatives from each of these organizations that came together and worked on an initial draft. This draft was then circulated to a larger audience of academics and people who have been engaging with this ‑‑ with these issues for very many years and we got their feedback on what should be ‑‑ how we can improve that draft.

And after an extensive public consultation period, which ran both over mailing lists and at various Internet Governance venues, we finally launched at the Manila RightsCon meeting as Jeremy mentioned. Yeah, I mean, in terms of diversity of the countries, another important aspect that informed our development of these principles, was jurisdiction analysis, where each of the organizations, the countries that they work in, we looked at the liability regimes that are applicable or in place, and we developed a set of criteria that would guide the issues and the best practices helped us identify the best practices across each of those regimes.

And there's a copy of the jurisdictional analysis, along with the set of principles that are there in front of you.

I will just pass on ‑‑ so I'm happy to answer any more questions on the process after the session. Thanks, Jeremy.

>> MODERATOR: Thank you very much. You are ahead of time. So we are going to have more time for interaction which is great. I will hand on to Kelly Kim who is going to talk about the advocacy and the outreach activities that we have engaged in around the principles, since they were first released. So Kelly?

>> KELLY KIM: Can you turn the PowerPoint on? So our career is fighting for human rights in Korea. And my presentation will focus on research activities in Korea. I'm Kelly from the Korean general counsel. I don't know if any of you already visited ‑‑ oh, okay ‑‑ already visited the website. This is the web page. It is very great that the principles can also exist. You can find the Korean version on the website. So this is very helpful in advocacy. So it is very important to make, you know this information available in many languages. If you want to have the principle on international impact.

Here are the six principles and Joyti already mentioned them.

So now we see how many of the principle can be applied to Korean and others. So there are six principles. Okay, I forgot to ‑‑ so six principles. And then this is, like, some more table. So in Korea, we have copyright ads, 103 and then information and communication act, Article 44‑2. So this is ‑‑ there are printouts on your cable, which is tied to the members of the parliament. So detailed information is in that handout. So you can just check the handout to see the provisions that I'm mentioning here.

So there are six principles, main principles. The first is ‑‑ so ‑‑ and six principles and the color shows like blue collar means it complies with the principle. Orange color is like yellow color, like ‑‑ so it's like ‑‑ it's ‑‑ whether it's in breach of the principle or not, and red color columns are clearly in breach of the principle. So first, manage the principle stays. The intermediaries should be shielded. So our Copyright Act gives complete immunity, as well as our information and communication network act gives only partial immunity. Intermediaries are liable ‑‑ can be held liable, even if they take contents down.

And second is like, content restriction requires judicial order. So that in copyright acts, intermediary has no obligation. They only take down content when there's a recourse from copyright holders.

So if they ‑‑ it's ‑‑ so it is actually says safe harbor. So if they take down the content, then they will be held liable and it's like no obligation, as well as information communication network act imposes intermediaries, liability, when ‑‑ when it does not take the content down.

And there is no court intervention here and so it's up to intermediary to take it down or not, and if they don't take down the content, even if the content is lawful, they be held liable.

And third is our copyright act follows the MCA notice and take down very detailed ‑‑ in detail. So it's okay, but, like, if you want to take down any content under ICNA, you can take down contents supporting your argument.

And fourth, the proportionality. So when you ‑‑ when a copyright holder takes down the content, the law says suspension. So there are rooms for other, like, technical measures, you know, to ‑‑ so, like, the intermediaries do not need to delete the content itself. They can take other measures to suspend reproduction or transmission, whereas under ICNA, intermediaries must deal with the content. And temporary intermediaries it's temporary deletion. It's 30 days blind period.

And this is, like, laws, orders, petitions, follow the process. So under Copyright Act, like, notice in take down of the MCA, the ‑‑ the person who got their content can request resumption of reproduction or retransmission, whereas the ICNA, the one who posted the content have ‑‑ has no right or no ‑‑ no right to request. And they have nothing about, like, transparency or accountability.

Okay. So ‑‑ so how this was ‑‑ so this is, like, detailed provision of information and communication network act. So if any ‑‑ any content seems to defends other persons or violates other persons other rights, it's very broad. So the right ‑‑ I mean, the person who makes the request can just allege that this content ‑‑ sorry ‑‑ has this problem, and then it just request intermediary to take the content down and the intermediary must follow this and delete the content completely.

So we thought this is like a huge problem and huge infringement on the Manila Principles and so actually Jeremy visited Korea in July and helped us advocating against this, using the Manila Principles. And this letter is what we circulated between the ‑‑ our network and our people, so that we can ‑‑ they can help us to change a law according to Manila Principles.

And we also ‑‑ this ‑‑ we also brought this to IGA which was held in June and we got many signatures and many approvals of our letters, but still it's going on. We ‑‑ okay. And we also proposed a bill to ‑‑ with our members of parliament, and we are fighting to change the law and Manila Principles comes in ‑‑ comes in very handy when we advocate to the people or to the MPs, or, yes, our relevant multistakeholders that this law is against Manila Principles and we must change the law.

Okay, the next is returning obligation. So Manila Principles, Rule 1a ‑‑ okay. Rule 1 says that intermediaries should never be ‑‑ yes. Intermediaries should not be recalled to monitor contents. So like, we have ‑‑ like in Korea, we have many filtering obligations under the law. So, for example, like Copyright Act Article 104 says, you know, intermediaries must take necessary measures such as technical measures.

It's monitoring of like copyright infringement materials. So it imposes such obligation to intermediaries and if the intermediaries does not follow ‑‑ I mean, breach the law, it will be fined for, like, 30 million, which is like 3,000 US dollars. We also consider this a violation of Manila Principles. So we also proposed a bill to repeal the law according to Manila Principles. And it's still pending at the parliament.

And next is we also have another law, which is telecommunications business act and it proposes filtering obligations for obscene materials. So it's different from copyrighted material. Copyright works are very clear. I mean, they have right holders and, you know, you can tell whether it's copyrighted work or not.

But when ‑‑ when you have to filter like obscene materials. So they must employ technical measures, first agreed to filter those obscene materials and those technical measures are like keyword filtering or any measures detecting obscene by the title or the filter.

So if the title is like, sex or what else? Whatever. It should be filtered. So it's a very broad obligation. So it's also in violation of Manila Principles. And ‑‑ and then the intermediaries can also be fined. This is a serious obligation this is for child porn. Of course, we should never, ever, allow intermediaries or anyone to spread child porn but this proportion imposes obligation to filter those child pornography with the same technical measures like copyright materials or obscene materials, like filtering or any technical measures that can detect child porn, maybe DNA, filtering or something.

And there's no guide line, and if intermediaries violate this provision, it can be ‑‑ even the person ‑‑ I mean, even the intermediary can be imprisoned for three years or fined like 20 million yen. It has not been used yet so far, but then, like, this ‑‑ okay. Sorry. I'm sorry.

So this are man is former CEO. He was indicted under Article 17 because this Kakao is most popular messaging service. There were some people sharing child porn on their messaging app, and then 9CEO was indicted for not properly returning or preventing circulation of the child porn on this platform. So this ‑‑ this was very serious.

So we ‑‑ we are the only organization advocating for the CEO and, like, this is in Korea. This is an article about this and many of the principles it mentioned Jeremy Malcolm and KS Park, like this is against the Manila Principles and the intermediary should not be held liable for not detecting child porn.

And next is our research activity. So Manila Principles inspired network of intercepters intermediary work project which says practice documents and this was inspired by also Manila Principles. So you may go to the website and check the good practices out. It will be very helpful.

Okay. Thank you.

>> MODERATOR: Thank you very much, Kelly. And there's some other outreach that we may have a chance to talk about at the end of the session, such as in Europe where, of course, there are moves to crack down on intermediaries or to impose additional responsibilities on them which could impinge on freedom of association online. So we may get to that/we have time at the end, but right now, I'm going to move on to Gabrielle from Article 19, who will talk about a new project under the auspices of the Manila Principles that we're extending our work in at the moment, and you can find out from her about what that is and how to participate.

Thanks, Gabrielle.

>> GABRIELLE GUILLEMIN: Thank you very much, Jeremy. First of all, we would like to explain why it's important to have a template of content restriction. As you know, the broadly free models for restricted content online, the first is a court‑based model whereby the intermediary is required to access content when ordered to do so by a court. The second model is also known as the safe harbor model which is also the noticing take down regime, whereby an intermediary must receive actual knowledge of illegal content and then take action to restrict it and as we'll see notice is particularly important in that particular context.

And then the third model is that a notice and a notice regime, whereby. Intermediary is pretty much removed from the dispute about content because the purpose of this regime is really to put the disputes back in the hands of the content producer and the person complaining about it, but the intermediary has an obligation to transfer the notice.

So why then is notice important? Is because at least in the context of the safe harbor regime, notice the takedown or the notice in notice regime, the notice itself can trigger exposure to liability. So this is why we decided to put together a new form on content restriction. Another important aspect is in relation to terms and conditions.

Because in addition to the legal requirements intermediary can restrict the service most of the time this can be from flagging content or pressing a report button. The concern here is that a lot of time, individuals will just have to press the button and there will be no explanation as to why there's a problem with the content itself. So the idea behind the form is to go through these different types of regimes and terms and conditions and design a template whereby individuals who want to complain about a particular piece of content must explain why they think it's problematic, when it's in relation to a legal issue, they would have to explain the legal basis why they think, for example, that material is defamatory.

In the context of terms and conditions they would have to give more of an explanation of why they think it's in breach of the intermediary's breach of service. That's pretty much the approach we are taking at the moment in the template. The template itself is not yet publicly available, we are working on it. We will be publishing it soon. I will be seeking feedback.

I will just end here by asking you whether you think that putting together such a template is something that is useful, and what is the best approach for dealing with it. Should we focus on different regimes should we do the notice and notice regime or notice and take down or should we take ‑‑ should we also have a template when it comes to the court‑based model since in principle the restriction needs to happen on the basis of the court's order itself, nonetheless, would it be useful to have a particular template to at least alert the person complaining that nothing will be done until a court order has been received.

So these are questions we would like to hear feedback on.

>> MODERATOR: Also how can people get further information from us if they are interested?

>> All of us effectively. So there's ‑‑ there's me at Article 19, and Jeremy of Internet Korea and NCI, pretty much the founding ‑‑ the members of the steering committee and is that ‑‑

>> MODERATOR: Yes, you can also go to our website and there's a link to join up the public mailing list if you wish to. So many ways for you to remain in touch and involved.

So those were the introductory presentations and now we are going to open up into a round table discussion with some friends and experts.

We have Rebecca McKinnon who is in the extended version of this table over there because she has to leave early and so she's ‑‑ she's hedging her bets and taking over there.

Giancarlo Frosio who is at the end. We have Nicolo Zongales who is at the other end we have Marcel Leonardi from Google and they can tell us a little bit more about themselves as they give their remarks.

And we are going to hopefully be able to jump around also ‑‑ just checking. Eduardo Bertoni is not in the room, is he?

Okay. That's fine. They are going to give a few remarks about either the associated work that they have been doing on intermediary liability or the impacts of the ‑‑ (Feedback) ‑‑ oh, dear. The impacts of Manila Principles on their works. So we are going to then, after that, panel roundtable, we will open up for questions and comments from the audience.

So the rest of this session should be much more interactive. Since Rebecca has to go. Do you have any comments?

Would you like to ‑‑

>> It's working. I will let you go.

>> REBECCA McKINNON: Thanks. Thanks for letting me lurk on the edges. I'm Rebecca McKinnon. I'm with the ranking digital rights project and we evaluated 16 companies, eight Internet companies and eight telecommunication companies operating around the world on their policies and practices affecting freedom of expression, and privacy of users.

And our freedom of expression section overlaps particularly with principle 6 of the Manila Principles on transparency and accountability. So I thought I would mention a few of the findings that I think are relevant and that might kind of help add some fodder to the broader discussion about transparency around requests, in particular. And about laws and about practices.

So in our ‑‑ in our section where we examined companies on indicators asking questions about companies' policies and practices affecting user's freedom of expression, we had a question about whether companies disclose any information about their process for responding to third party requests, be they from governments or private actors, including DMC takedowns and whatnot.

And out of the 16 companies, eight companies publish some information to varying degrees about their practices and policies. Just for responding to requests, not including data about the requests themselves. And this included some but not all of the Internet companies and a company of the telcos, Vodafone and AT&T being the two telcos that disclosed information.

And then when it comes to reporting data about requests, we ‑‑ we had one indicator asking about whether companies report data, in other words numbers of government requests that they received to take down or restrict content. Only six companies report any data numbers about the number of requests they received from governments and courts.

When it comes to private requests, there's even less transparency, which ‑‑ so private requests in our kind of taxonomy, we include, you know, notice and take down in the private request, as well as people flagging content.

And only four companies report any data about private requests that they receive. And in general, while there are quite a lot of places where laws are restricting or perhaps preventing companies from reporting about government requests, generally the laws are not preventing companies from reporting private requests, yet there's a lot less reporting on this. A lot less transparency about private requests.

So this is something to flag, and perhaps somethings that the Manila Principles coalition might want to really push for intermediaries to do. And I would note, since we have our friend from Korea on the panel, and that open net has been doing a lot of work in this area that Kakao, the Korean company that she mentioned earlier, was one of the companies we included in our index and they do, in fact, report on at least some private requests.

So that's ‑‑ that's kind of worth noting.

Another final note is that when it comes to enforcing terms of service, which would include enforcing ‑‑ you know when companies are sort of their own initiative, taking down content, including ‑‑ including things like images they think are copyrighted, that, you know ‑‑ so anticipating that they will be held libel for this material and taking it down even if they don't receive requests, there is zero data, zero numbers reported by any of the companies studied on terms of service, removals and restrictions that are, you know, done internally not in response to requests but just voluntarily by the companies.

So that points to a real deficit in transparency, and that perhaps is preventing understanding of what's going on and so I would recommend perhaps kind of pushing for that, and, of course, government transparency about this.

And then one other point to make, and then I will hand it over to others is that there ‑‑ that not very many companies are ‑‑ are then posting sort of the content of requests on to third party sights like chilling effects. It's really only a couple of very tiny handful of companies that are doing that, basically three in our sample anyway. There's some other smaller companies that do it.

But based on our understanding in some ‑‑ in a number of jurisdictions, it's actually not legal for companies to use a mechanism like chilling effects to be transparent about the content of orders they are receiving.

So that's another place, perhaps for legal advocacy and pushes ‑‑ push for legal reform that when you have a lot of places ‑‑ and I think kell civil society correct me if I'm wrong. I think Korea is one where a chilly effects is not possible because of the law and that's a concern.

>> MODERATOR: And as have a good flight as you move off.

So I'm going to hopefully not surprise him too much, but Marcel, I will call on you because, of course, Google is one of the companies that does report its take down notices to chilling effects or Lumen Database that I think it's called now. What about the other aspect that Rebecca mentioned about terms of service removals S. that an area in which we can see some further disclosure by Google in the future? What do you think?

>> MARCEL LEONARDI: There's some discussion internally when this issue arrives. It either involved sensitive issue or a clear violation of the terms of service. So I guess there wasn't really a specific push to actually present that kind of data. So I'm really glad to hear now that there's demand for that type of transparency. I would like to highlight. And how the Manila Principles have a very close dialogue with them ‑‑ with it. And the reason being is for quite a while here, there was no specific immunity for intermediaries. So essentially they impose strict liability for intermediaries, so you are responsible for whatever users were doing.

After a few years, I would say maybe four or five, courts would start imposing ‑‑ how can I call this? A different standard of liability, especially like notice and takedown but they adopted notice and takedown for any type of content. So essentially you could claim defamation and the courts would say that intermediaries would have accounted upon that notice.

And then if companies like Google didn't, what happened was that perp would, for example, take the issue to a court. The court would say, you should have known better. You have should have acted upon the very first notice you got. So therefore you are liable for the very first notice, not just because the judge has analyzed the issue. They tried to show that issue in Marco da Civil. Private parties or the government is actually required to obtain a court order to force companies to take content down which is a very good sign of progress. There's some stress into what extent that means, essentially on the identifiable aspect of what content ‑‑ what kind of content is. We get lots of lawsuits here in which we get very broad and generic court orders saying please remove, I don't know, the picture of this woman in the red dress. Please take down the video of the dancing bear or something which is not exactly very helpful when you have so many ‑‑ so much content going on, especially in platforms like YouTube who get 400 hours of video per minute.

We need the URLs to take the content down but there's some discussion whether it's necessary or not. Recently we got some really good precedent on that. There's still lots of work to be done, especially now that Brazil is perceived as very ‑‑ at least somewhat influential in these IG debates and what we are perceiving is there's no dialogue with this community, with the local Congresses across the region and basically, there's plenty of action to completely reform these recently enacted legislation.

We are seeing plenty of people wanting to enact the intermediary liability and some in the revenge porn, a notice and take down is are in place for that.

But now everyone wants to have their own rules. Now we are seeing politicians offenses to politicians should also be on the fast track system. That's obviously not a very good one.

>> MODERATOR: Thank you, Marcel. I will pass on to Nicolo in a minute. What Joyti said, this was a civil society initiative. We didn't decide to have a multi stakeholder on the intermediary, because we wanted to have a high bar. We have think many of the intermediaries have come out in support of the document, and for that reason, we are also opening it up to endorsement by industry, and by industry associations and so we are hopeful that we are going to be able to announce fairly high profile endorsements from within the Internet industry, and the technical community to this document.

So that's really good news and you should stay tuned for more information about that soon.


>> NICOLO ZINGALES: Yes, since we said this was a bit more interactive. Marcel was speaking precisely about principle two of the Manila Principles whereby intermediaries cannot restrict content, unless by an independent judicial authority. So here, I think there's something to point out that you can interpret this principle as referring to a property or to a liability rules.

So for those who don't know the difference, it's a standard distinction made in law and economics where property rules tries to secure the effectiveness or the protection of the property. So it ensure, that the owner has an effective mechanism to prevent anyone from interfering with its own default entitlement. That's what we call property. So in this case, the entitlement would be that the intermediaries should not be liable, and if ‑‑ if we see this as a property rule, this means that it refers to any case in which a court or a complainant can force them to remove content.

So this is where the intermediary will be liable if he fails to remove content. So if you adopt this second perspective, you are not referring anymore simply to the need for judicial oversight and basically preventing the government for imposing the removal of content, but you are ensuring a safe harbor into the system that intermediaries can do whatever it wants until it gets an order that says you have to remove content. Oh, yeah, at this point, it would become liable.

So I think on this, maybe some clarification could be, perhaps, interesting to make. And if we adopt the second perspective, that is liability, what we are talking about.

So not only property, but a liability rule, then we are going close to the standard that was adopted in Marco da Civil. I think this is very good but it should be pointed out that the Marco da Civil also identifies two specific exceptions, one is in the case of copyright enforcement, and the other one is revenge porn. So in this case, I mean, if we want to export it to the global level, maybe we should start thinking about how to identify the exception to these principles. I didn't want to exhaust my intervention to this. This was a comment based simply, where I'm arguing that the Manila Principles can be considered one of the pillars for a global Internet intermediary liability regime.

I will speak later about my other projects.

>> MODERATOR: We'll come back to you after we heard a few words from Giancarlo.

>> GIANCARLO FROSIO: We have launched and as some of you may know, the world intermediary liability map. This project show cases information about a legislation case law, and additional and pending bills and proposals connected to intermediary liability.

What I'm trying to do so is access and so we have the ‑‑ so that project we have been in a privileged position to consider developments in intermediary liability, recent developments. So what I'm trying to do is to assess the consistency of those developments with the intermediary liability precipitation, at least with two of them. And I will try to be as brief as possible.

I'm going to look into a principle number one and principle number two. So whether we intermediaries should be shoulders liability from third party content and especially in terms of proactive monitoring obligation, and then whether we should have or not ‑‑ or whether we are having more or less judicial review for intermediary liability.

In fact, looking at the first point, my feelings are mixed. Should we have on the side a new safe harbors enacted. The Marco da Civil is a good example. We have a bill in Congo trying to get a safe harbor regime as well. But at the same time in Europa, we have sent a proposal for increase. Those proposal may be mentioned and later on we will open a discussion on the single market strategy, which is planned interaction, in terms of introducing a duty of care for intermediaries and announce that you don't care in case for ‑‑ for ‑‑ in responsibility for dealing with illegal content, such as especially child pornography, terrorist material and content that infringes upon the intellectual property rights. The German coalition agreement of 2014 has foreseen the possible introduction for intermediaries. It is already law, the Spanish copyright reform, which has increased liability of intermediaries especially introducing a notion of secondary liability for copyright infringement, in the Spanish copyright law, and introducing obligation of disclosure of identity of potential infringers, for intermediaries. As far as monitoring obligations are concerned, although we generally have a ‑‑ we have a general principle, normally in obligation Europe, here the trend is concerning as well. We bring the Manila Principles are telling us.

At least in most of the European nation cases, though we have a great important exception in the case in Argentina, we have a number of cases in Europa, starting from the so‑called decision in France, I won't have time to detail the facts of the case, but I will just give you names and then we can discuss it later. Then ‑‑ then a couple of these cases which ‑‑ the cases dealing, in fact with copyright infringement to Google who ‑‑ and Microsoft in France for websites streaming illegal movies.

The Max Mosley case are dealing with the privacy infringement and in both of these cases, in fact, the Max Mosley case were both decided in France and in Germany. The court imposed proactive monitoring obligation on changes and at the same time in Italy we had mixed ‑‑ a mixed decision with proactive monitoring decided at least in one case or ‑‑ and another case which, in fact, is ‑‑ is confirmed that there's no monitoring obligation.

At the same time we have in Brazil the decision which was decided before the Marco da Civil, but has applied a strict liability principle and enforced proactive monitor.

As you may know, we have a very important decision from the European court of justice for this decision, which, in fact, adopted proactive monitor obligation for ‑‑ for intermediaries. The great exception is the ‑‑ the Biland decision in Argentina where the court has in fact said that there's no monitoring obligation for companies and that unless ‑‑ in a number of specific cases, notices must be decided by a court rather than a directly dealt with by companies.

The second important trend and I will get through it very fast is related to ‑‑ is related to the second principle, which, in fact, would seek for judicial enforcement of any intermediary liability decision. In fact, we really see something else happening right now. We see the emergence of enforcement and I will just detail to you all the administrative agencies that are dealing with a miscellaneous array of infringements, spanning from copyright infringement to defamation and privacy infringement. We have in Italy, the outcome, which was empowered the communication authority, with dealing with the line copyright infringement.

In Spain, we have the copyright commission, which was empowered with enforcement of the line copyright infringement. In Turkey we have the communication and which was empowered with the administrative enforcement of any type of violation of personal and privacy rights.

In we have in Russia, a czar which has different infringement and can order blocking orders on administrative basis.

We have in South Korea, the Korean communication commission and the communication commissions standard which is applying administrative enforcement and so no judicial review for targeting intermediaries and imposing the obligation or blocking of deleting content.

In Iran, we have the committee for determining instances of criminal web content. In India, we have Rule 7 of the IT rules.

And finally, and then in Venezuela, we have a commission, Connectel which is blocking and taking down material on an amnesty basis. And finally in China, we have a very recently the national copyright administration of China which wants to implement the same mechanism for copyright for ‑‑ for enforcements that will align copyright infringement as it was applied by the Italian AGCOM and the intellectual property commission.

So I will stop here. Then maybe we could discuss if there's a few minutes what we could do in order to tackle the problem of judicial application of intermediary liability decisions because this is probably one of the important emerging trends.

But according to our mapping of the trends, the developments may be inconsistent with what the Manila Principles are asking for.

Thank you.

>> MODERATOR: Thank you very much Giancarlo. We have a hand in the audience but where we go to questions. I would just make a note that although it appears we are running out of time, the timer up there shows we have a 90‑minute session although we are supposed to have a 60‑minute session. If anyone would like to stay after the hour we can carry on the discussion. We don't have to take the full 90 minutes but does anyone mind if we run a little bit late? No?

Okay. So in that case, I can hand back ‑‑ well, firstly thank you to Giancarlo for raising some important issues it shows you how timely the Manila Principles are. There's a rash of moves to impose duties of care, proactive monitor obligations, the Delphi case was handed down. So I think this is absolutely the right time for this initiative.

And I would like to hand back ‑‑ before we open for questions, so Nicolo for his additional remarks.

>>> NICOLO ZINGALES: So on one point, I wanted to confirm what Giancarlo said in the sense that I think we also need to look into extra judicial mechanisms for enforcement, that are adopted by intermediaries. The Manila Principles adopt this this squarely as part of the principles and if you have very ‑‑ very strict principles, or guiding, for example, the need for a judicial order, before the content is removed, the risk is that they will switch to a private framework.

>> Can I mention this, I think I expressed myself wrongly. You talked about extra judicial. I wanted to mention the trend that is emerging and we should say tackling it and discuss with the Manila Principles, but we need both. Extra judicial and extra editorial obligation.

>> NICOLO ZINGALES: Going over the projects that I'm involved in that are related to Manila Principles, first of all, as we are the IGF, we should mention that we are one the coordinators of the dynamic coordination of platform responsibility which has as an objective the development of a model contractual closes, that different kinds of platforms can adopt to show that they have a responsible behavior towards the protection of the rights of their users in.

Particular, we started with freedom of expression, and privacy, and we developed the process.

A little bit in parallel with the project that we started from the Sergeant Tuella Vargas and its terms of service and human rights and we looked into actually how the companies are respected the rights of privacy, freedom of expression and due process. So we developed a methodology based on the human rights standards and we score the companies according to the level of protection that they offered under each of these aspects.

And I think that with respect to the Manila Principles, how they relate to this, there are a couple of points that are particularly fitting.

So the last one that was also mentioned by Rebecca was a similar project is the one that transparency and the accountability must be built into content restriction and laws and practices in.

Particular, there's one of these sub principles that addresses intermediaries that they should publish the language online and keep them updated, notifying users of changes when applicable.

So here we have, of course, recognized the impact that a change of policy can have on the rights of users. So it requires meaningful notice before any change ‑‑ any significant changes is made. And with respect to clarity, we have the policy that wherever the terms of service are either incomplete or up clear, vague, like, for example, they say we may do this, or we may not, in that case, this could be interpreted to the detriment of the users who ‑‑ so in the terms of the enumerated project, we rank the company down. We score them in a negative way when we have a ‑‑ the objective, that is pointing towards specific aspects that need to be clear and transparent as the Manila Principles suggest. So we direct companies to the right parts of the terms of service that need to be clear.

The last principle I wanted to mention is principle number four, laws and content restriction orders and practices must comply with the test of necessity and proportionality.

So here we have responsibility, specific notion of legitimate law, which is a bit of a creative intention to refer to situation where maybe the law is not perfectly consistent at the national level with the international human rights standard and this can happen from substantive perspective when the law, you know, requires the intermediaries to reach too much to restrict too much, for example the whole YouTube channel, when only one video is infringing. And so this was a way in which we incorporated this Manila Principles I thought.

And then on ‑‑ with regard to the fact that any restriction of content should be limited to the specific content at issue, also again, we recommend in the recommendation in terms of the human rights that any restriction of content that is permanent should only be adopted as last resort. So at the first level, the intermediaries, it should not completely erase it from the system, but at least wait until the decision is finalized, if it's undergone judicial review or the time for accessing judicial review is terminated.

Thank you.

>> MODERATOR: Thank you very much. The timer does now say we have 15 seconds left, however, my colleague Joyti has gone to the back and confirmed we can overrun by a little bit, but there is another session coming later. So we will wrap up in the next 10 to 15 minutes.

It's great to hear about these other endeavors that are aligned with the Manila Principles and just I should note that if you are doing any work on intermediaries liability issues and you don't already have a platform for publishing that, please do consider the Manila Principles' website to publishing that. We are very interested in hosting material with you there.

And so let's open it for questions.

I saw a couple of hands before. I think the first ‑‑ we have a microphone here. If you could come to the front to give your question. Second will be are Pranesh and then the gentlemen who is coming forward now. Those are first three. So why don't you line up and thank you.

>> AUDIENCE MEMBER: Hi, I'm from Argentina. I'm a colleague, not because I work in the same place, but I work in ‑‑ and I'm a colleague of Eduardo Bertoni. So maybe I can share with you what's happening in Argentina. We had, like Giancarlo said, the president in court, which was a very important ‑‑ very important one, but we don't have a civil law. We are speaking about the Manila Principles in academic and many of the principles are having very good reception in legal environments mostly.

So there is a lot of work to do, because we have a very ‑‑ the legal community is still taken all thinking about responsibility or liability, sorry but we think that we have a chance because in academic environments, Manila Principles is being taught. So we think it's very good. I just want to share with you that, so I have a meeting at 12:00. So I say good‑bye.

>> MODERATOR: Thank you. If you can email us some of the details, that would be wonderful. Thank you.

>> AUDIENCE MEMBER: Hi, I'm Bobby I'm a film producer from India.

My question is a little amateur, because I'm getting drips on this. But if the Manila Principles require a court order, then in a country like India, it's totally useless, because getting copyright material off the web, with a court order is like the horses have run away after the gate is open and run away for miles.

At the moment, we have some type of police actions and so we can stop sides but if you were to follow this principle of having a legal order, it would never happen.

I want to respond to that, from the steering committee or ‑‑

>> MODERATOR: Okay. Let's take more questions. You are next in line, anyway, Pranesh.

>> AUDIENCE MEMBER: So first, quick responses, Pranesh Prakash, he missed a presentation that I made just around 10 days ago as a matter of fact, unfortunately where I spoke about court orders and private enforcement of copyright in India and how numerous websites, including GOO.GLE, which is the Google shortener which have been blocked and so there's a complete lack of accountability. There's hundreds of websites which without an iota of proof, without a shred of proof as to there being copyright infringing have been blocked in India, including meta cafe,, without a single court record. Now how would you bring about accountability into a process like this remains a difficult question.

And they are not hypotheticals. This has actually happened, right in India.

Secondly, the question that I have is one about the lack of clarity of, and I would love it if one of you would take it up, about what is an intermediary here? Because there's almost an assumption in this document, in the Manila Principles the intermediaries are large companies they needn't be large companies, intermediaries, the framework might be quite onerous for individuals and they might not actually have policies. So how can we shoehorn a one size fits all system to words and intermediary liability when there are so many different kinds of intermediaries?

>> MODERATOR: Next question and then we'll respond.

>> AUDIENCE MEMBER: I'm Denny O'Brien and I'm from the Electronic Frontier foundation. This is a comment rather than a question. I think Rebecca's point earlier that many of you have touched on about that removals due to terms of service is an important one. And I just wanted to mention that I think in ‑‑ within the next week, we'll be launching a site called which is an attempt to do what chilling effects did to highlight government takedowns, where it will enable people to report their removal of their accounts or content for apparent terms of service violations and hopefully we'll ‑‑ from that we'll be able to get some data and see if we can introduce or encourage some transparency to this, because I think we are all agreed that it's a bit of a murky environment right now. Thank you.

>> MODERATOR: We'll hold the next two questions. We get to you, but we will just answer the questions that we had first.

Also,, you will see a different website that will be replaced by a sparkly new website. If you are under impressed with the current website, don't worry at all.

I think Gabrielle had an answer to one of the first questions.

>> GABRIELLE GUILLEMIN: To the gentlemen how impractical it would be in India to wait for a court order. I think it's important to remember that Manila Principles aim to set high standard, and in this sense, we were aiming to have the highest standard possible in terms of the person ultimately or the body ultimately deciding whether content is unlawful should be in court. That's why we went with the court order, nonetheless. I think it's important to remember in practice that the court order is in relation to the obligation of the intermediary to restrict access to content.

In practice, the intermediary should have its terms and conditions and it shouldn't prevent the individual from reporting content and hopefully give details as to why he or she thinks the content is in breach of the terms of service.

So there would still be this avenue, but in that particular case, then the approach would be different, since it would be up to the intermediary to decide whether or not there's a breach of their terms and conditions.

Now, what we are also advocating for in the Manila Principles is for the intermediary to be as transparent as possible in relations to its terms and conditions so that individuals know what to expect in terms of what's permissible and what's not on the platform and to make sure that there are also redress mechanisms which will lead us into the territory of Pranesh's question about then how practical it is for intermediaries to put in mace these mechanisms but perhaps someone else on the panel wants to respond to that.

>> Maybe I could. So when we were drafting the Manila Principles, we did at the outset consider the different sizes of the intermediaries and I remember it being said that we even wanted to cover someone who may host an open Wi‑Fi hot spot in their house or have a bulletin board on motorcycles that they run from their bedroom, that sort of thing.

But the extent to which the obligations are applicable to different classes of intermediaries are a little hard to discern from the text of the principles themselves. One of the hints you can get is where it says should rather than must. That is where we give ourselves some leeway to apply different obligations to smaller intermediaries than larger intermediaries so "should" is really more of a best standard to aim for, for those intermediaries who have the resources.

We have two more questions. So let's take those and then we will close off the questions there and turn back to the panel for answers.

>> AUDIENCE MEMBER: I'm the director of the digital infrastructure education in the Netherlands. My question refers to Pranesh's point about the scope of intermediaries again. In the Netherlands we have some concerns about the definitions of intermediaries and the scientific council for government policies introduced a concept called the core of the Internet which should be excluded from any interventions any way for any type of content, including Internet exchanges, the DNS, and carriers and ISPs, which means that the communications should be just net neutral and all other forms, and hosting companies, certainty and where it would definitely apply ‑‑ it would definitely inbound scope for intermediaries for Manila Principles.

So I'm curious about your position on that for making differentiation between types of intermediaries that should be left alone and others that should adhere to the principles.

>> AUDIENCE MEMBER: Probably you stated it, but I missed it.

How do you ensure that right does not become the tool, that abuse of the takedowns on grounds of copyright has become a new tool of enforcement censorship and what mechanisms are there to ensure that intermediaries are not being made unsuspecting partners in that censorship? Thank you.

>> MODERATOR: Those are two very good questions. Let's take one last question.

>> AUDIENCE MEMBER: I'm a little person. Thank you very much. I'm have Venezuela. I want to thank the doctor for mentioning Venezuela's case. Last year, we had more than 100 ‑‑ 1,000 websites unload, from the regulator entity which is Connectel, but also our law, our media law established heavy fines for third parties just for publishing news. That in our case is very ‑‑ it's very worrying, for example, if we have ‑‑ we are confronting media harmony, some people in our country are going to the digital sphere to get out our voices.

For example, we have more than 30 media directors that are being prosecuted because being published in their websites, news that were being published in Europe, for example, regarding our authorities. So it's a very concerning issue, these one.

>> MODERATOR: Thank you. So let's turn back to the panel. Nicolo, I have think you have a response to the different types the intermediaries.

>> NICOLO ZINGALES: Yes, this is a continuing question. This is technical intermediaries and the principle that's usually applicable is one of near conduit. So it's not liable provided that it doesn't initiate the transmission. It does not select the receiver of content and it does not select or modify the information that is transmitted. The joint declaration by the three Rapporteurs and freedom of expression in 2011 recommended the liable to this principle in the law, but it also suggested to broaden this principle beyond mere conduit, mere technical intermediaries. So I think in this respect, the Manila Principles takes a step forward by following that suggestion and this is something to be praised.

On the other hand, it's true that there are different classes of intermediaries that look more in‑depth. And also connecting to the previous question about size, we should recognize that the powers and the responsibilities of these entities are not the same.

So in Europe, for example, we are starting to adopt a more differentiated approach with regard to the data protection law, the new general protection regulation, and as some higher burdens for data controllers who are higher size ‑‑ higher rights of users.

In this respect, I think what could be helpful is to look at something that is called the did I filtering duty which is a theory being argued by Jack Balkin from Yale and from Harvard. And it refers to the idea that these entities ‑‑ we got the information that we entrust them with, however, the scope of this duty, of course, depends on the expectation that we can set on these different players and the size and the type of the activity that they perform, of course, has a bearing on how broad our expectation can be.

>> MODERATOR: We have to wrap up, but just very briefly, I will go to the panel for the last two questions. This was one on copyright enforcement or censorship through copyright and one on Venezuela. So go ahead.

>> Sorry. Real quickly only on the question on intermediaries. I wanted to highlight what Brazil did as a legal solution. Essentially if you are an intermediary, no matter what kind, as Pranesh mentioned, any time of intermediary, it applies to you immediately. If you are a commercial enterprise, then you have extra duties open data retention and trying to figure out who posted the content is. So that's the distinction that they drew on the legislation. I'm not saying it's a good model. I'm just saying it's what exists.

On the copyright issue as my colleague said, essentially as a practical matter, notice and takedown regimes for copyright is what we observe around the world, regardless of the existence of a local DMCA. That's what companies tend to do.

The reason is very simple, companies under an interesting position in which they get pressure from both sides essentially on the idea of private takedowns. What usually happens is we get pressure to be as fast as possible in taking down content from the victims of supposedly online wrongdoing perspective; on the other hand, we get the same pressure from the user who actually posted the content.

So it's exactly why initiatives like the Manila Principles would try to influence policies and I thank you for all the hard work you have been doing.

>> MODERATOR: An that note, thank you very much for coming. I am disturbed by the number of laptops that I can see that don't have Manila Principles stickers on them.


So you need to get your Manila Principles stickers at the back before you leave. Thanks again and we'll see you ‑‑ we'll be in touch. Thanks again.