15 SEPTEMBER 10
FREEDOM OF EXPRESSION AND
WHERE DO WE GO FROM HERE?
Note: The following is the output of the real-time captioning taken during Fifth Meeting of the IGF, in Vilnius. 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 session, but should not be treated as an authoritative record.
>> I'm one of the current organisers of this workshop. The workshop has been organised by quite a wide range of institutions and organisations. We have the... from the foundation. We participants in the process, centre for technology. And individual organisations, associations of progressive communications and some academics. It's an interesting organisation itself but it's been a great process.
So with that, I'd like to hand over to our two moderators. We have, from the University of Belgrade in Serbia, and Aidan. So I give it to them to expand what we're going to do and how this is going to work. Thank you.
>> First let me tell but the format of the workshop. We are going to have interactive discussions so please feel free to intervene whatever you want to do so. We will focus on a couple of parts. First we want to know, where are we now, when we speak about internet intermediaries and freedom of expression. We'll examine some case studies.
Then we want to discuss what are the principles as regards internet intermediaries liability and in the end, which means, to examine how we are going there. And Michael McAdam will tell you more about the basic ideas behind this workshop.
>> Thank you for coming. There was a certain point in time when intermediary liability was an arcane topic and would not have attracted a crowd. We're quite pleased to see the extent to which there's interest in the subject, and in particular, in this workshop focusing on freedom of expression aspects of intermediary liability and the role of internet intermediaries in the process of communication information.
As we announced, it's challenge, the extent to which the roles that internet intermediaries play in internet traffic, internet communication. There are some aspects of questions that are new but there are some significant aspects that are old and that draw on traditional laws that apply. And there are many different perspectives. As is already mentioned, this is very much encouraged unfortunately, there's desks and all that.
We're going to start with the UN special rapporteur, Frank Larouu. We're grateful for his coming here and appreciate his thoughts on the issue.
>> Thank you, Aidan, and thank you everyone. Basically, I was asked to explain a little bit why we have to have the human rights focus on this. And I was very pleased to accept this invitation because that's exactly how I see my role coming to the forum, the IGF, because I think that having a human rights focus on these issues is not an added attraction. It's a fundamental element. And often times we make a difference between the technological aspect, the commercial aspect, the corporate policy aspect or the state policies. And we put human rights in a theoretical distinct area.
I believe that everyone, including corporations, obviously the states have the obligation, corporations but the whole society should have human rights perspective. Human rights is the responsibility of all. And although they're established as an obligation of the states, in reality, they will only be achieved by the demand and the responsibility and the interactive purpose of all citizens and all peoples around the world.
This is why we always assist on universality. When I teach classes, I'm from Guatemala, I always say, we talk about how human rights are universal, but I always add, too, I say human rights have been gained by the struggle of peoples. They're never a free concession of all the faiths. Then they become an international convention. They become an international instrument, but they have always been the demand of the population to exercise their right, the same way that labour rights began two centuries ago that way.
And the other point I make is that human rights only work if there is a commitment of all. It is the obligation of states, yes, and there is an accountability of the states to international mechanisms or to their own justice systems. But at the same time, we have to recognize that all these policies are only applied if everyone actually demands this from the states.
In regards to the internet, I always say that this is probably now not a challenge but it was one of the most complete forms of communication because the freedom of expression is the right to seek and receive information on one hand, to build your own opinion and the possibility of expressing them to your ideas and your thoughts and your opinions through any medium possible. Internet is exactly one of the biggest facilitators of that. It is the biggest facilitator to seeking information and receiving information but at the same time, it's a great medium to express one's opinions and ideas.
This is crucial, because obviously we're not talking about a new right. Freedom of expression has existed since it was established in Article 19 and it has been progressively been developed. So one of the important issues now is that internet does not bring a new right into play, it brings a new dimension to an old right, a bigger dimension.
Here is where I think a bigger responsibility, because yes, internet is not only a national but is now an international phenomenon as well. So you have the responsibility of states, individual states. You have those responsibilities of international bodies, the human rights council in Geneva or the ITU from the technical side or, as a matter of fact, forums like this that establish different debates on different policies. But at the same time, you have the responsibility of the user and you have the responsibility of the service provider. And I think we all have to acknowledge this common responsibility, like I say, although you can make your demands to the state, human rights will only be affected if we all participate and we all assume our level of responsibility in achieving human rights.
>> Thank you. When we talk about internet intermediaries and freedom of expression, we have to bear in mind there are different categories, different types much intermediaries and different types of intermediation. I'm pleased to introduce Ms. Sin she I can't Wong from the centre of technology in Washington, it D.C.
>> Thanks to everyone who made it out to what I think is going to be a really interesting workshop. I just wanted to start my comments but very much agreeing with Frank in saying that the internet has all the potential to promote human rights and to become an engine for economic growth and development all over the world.
This potential is especially true in the web.2 area where user generated content platforms enable ordinary users with very little technical knowledge to access content online, to interact with the global community in unprecedented ways. The importance of internet intermediaries should become pretty clear when we start thinking about how we as regular citizens using the internet in everyday lives, we connect through our local ISP's. We blog. We use search engines to find what we need. We engage in debate on all manner of forms of political and social issues.
In addition to these use, we've also even in recent years while Facebook and YouTube and Twitter can be used to talk about the latest celebrity gossip, they can be used to shine a spotlight on government abuses.
I think what should be clear from these examples is that's especially on the internet is largely made possible by a number of intermediaries that actually provide the platforms and the conduits for speech. And in many countries, although not all, these intermediaries are largely provided by commercial entities, by companies themselves. And when we are in a country where we can access the open internet, when we log on to the internet, we are able to choose the platforms we want to and access the content we want to without much interference.
But of course, the openness of these platforms also means that they can be used to do ill including good and that they can be used to commit crimes or to district content that might be deeply distribute content that might be deeply offense I have to people who use the internet.
This really raises a key question, which is, should those intermediaries, please platforms and conduits be legally responsible for illegal activity, illegal content online. This is really the crux of what we, I think, want to talk about today.
In answer to that question, I just want to put on the table and consider this that the openness of internet that we enjoy today really didn't come about by accident. It was really the result of very specific choices around policy and the technical architecture of the internet that enabled the free and open internet.
And I would also say in those countries with the most vibrant internet industries and the most open networks, the policy framework, the policy internet has pro tech these intermediaries from user content. I would say a couple of them do things to support free expression. They actually encourage these companies to provide these platforms and conduits to begin with and it discourages companies from interfering with the way we use the internet today.
In many ways, it's really these protections that have lied the development of the development of the web.2 area. I think this workshop is an incredibly timely one. Some of the original policy framers that protect the some of the original policy frameworks that protect the intermediaries
The original frameworks are under a lot of pressure.
>> The infinite loop.
[ Laughter ]
>> In many countries, both Democratic or otherwise are struggling with some pretty tough policy challenges like Cybercrime or copyright infringement or hate speech. And many of these countries are beginning to propose laws that could fundamentally change the world internet intermediaries have played in enabling a wide range of expressive engagement online.
I think we should really take advantage of this opportunity to fully explore the role of intermediaries and how they enable free expression online and how different policy approaches can support or hurt the expressive potential of the internet.
>> Thank you very much for that. And we'll have the opportunity to tease out a lot of these issues. Next, I encourage people, having sort of seen the layout here, feel free to stand if you want. Feel free to sit if you want. However you'd like.
Next I'd like to ask Dimitri Ypsilanti to speak who is head of the information communications and consumer policy division at the OECD. Part of what we're trying to do in this workshop is also to map out the existing work on internet intermediaries so that we can all share the knowledge about what's going on currently, the research and the analysis that's taking place so that we can enable future work towards the end of the conversation. So thank you.
>> DIMITRI: Thank you. I'm a last minute addition to the agenda. And I thank the organisers of this workshop for including me. We are having a workshop tomorrow at 2:30 in Room 1 which is looking at the work that we've undertaken on internet intermediaries. So I would invite you to come to that workshop, which I think is very complimentary to the type of issues you are looking at here.
We started looking at internet intermediaries in 2009. And we began basically by looking at the economic and social function. And that first phase of the work has been terminated. It's publish. It's on our Web site. The second part of the work which has been going on over 2010 and hopefully will complete, we were completed by about March 2011, is looking at the public policy objectives of internet intermediaries. And basically, what we're trying to develop, good practices which can be used in public policy if action is taken by governments with respect to internet intermediaries.
For us, one of the key questions is, to what extent should internet intermediaries, which own and operate an internet platform, be responsible for third party content. Put another way, if you want, the question is, to what extent should responsibility for the original content remain with the provider, and one of the consequences for the internet economy and for the development of the internet economy.
While many internet intermediaries do and in many cases are required to take ex post action to take content off their platforms, there is concern because increasingly, governments are asking them to take x MT action, which can be quite costly to them and can lead to many uncertainties because it's never clear exactly what they should be preventing from being put on their platforms.
I think there is a strong belief that imposing liability or other responsibilities on intermediaries, content created by third parties, raises a number of negative implications. Free speech which was mentioned, issues on privacy, innovation as well as competition. And given that the internet is becoming key to our economies, creating uncertainty in the marketplace should be of concern to governments.
With that, let me again extend an invitation for you to come to our workshop. We hope we will discuss what kind of best practices and principles should be developed and codified in order that we can create at least a consistent framework across OECD economies. Thank you.
>> Thank you very much. And there actually are several panels and workshops at the IGF this year touching on these issues. And we're also grateful to have here Bill Dutton, the director of the Oxford internet institute. Give a report with the connection of UNESCO, freedom to connect, if could you tell us about that work. The panel was yesterday. So we can't invite to you go. If you could tell us about the report and what's next.
>> Bill Dutton: It is really great to see this panel and how many people have turned out for this workshop. We did a session on freedom of expression, freedom of connection. We were reviewing the literature on this area which is, I think, underresearched and looking at a variety of case studies. Some of the most fascinating case studies we looked at were regarding intermediaries, Google and so forth. I'm sure you'll be talking about those today.
I agree with everything that's been said. We all know this could have a major chilling effect on freedom of expression and that the question in my mind is, how could politicians and public officials accept this idea that intermediaries should be held accountable. And I think what I'd like, in an extremely over simplified way to say, I think this is because we really haven't resolved the debate over the models for internet governance in this way. In the '70s, of course, with the computer and so forth, the idea was to not regulate the internet. When regulation of the internet began, of computer mediated news and information, the debate was, should the inter net be analogous to the press, to broadcasters or to common carriers?
Each of those models did not apply well to the computer based communication systems and the internet per se. I think that was in the early '80s when the debate was most vigorous and it was when news was introduced online and how they should be treated.
That debate died off with decisions globally often to not regulate the internet. But it was not settled. And not regulating the internet was an idea of spurring development of the internet, fostering innovation. And it was an innovation which governments thought was marginal and would not make much difference and would be more generalized in the future.
Now that the internet is becoming extremely significant and central across all media, governments are now moving back into this area. And they do not have a model for thinking about it. And the only way that they can accept this kind of responsibility from the intermediary perspective is by making analogies to the press or broadcasters or common carriers.
And none of those apply. So I think a critical role here, the Internet Governance Forum has to be able to deal with what are the what is a new model of internet regulation, which is not trying to fit the internet into old models of media regulation, which are entirely inappropriate and will have a chilling effect on freedom of expression. I'll just leave it there.
>> Thank you very much. We actually, at this point with that introduction and the state of some of the work that's done, there's also, there are other projects and other reports that are in the works that will also be raised. We wanted to open it up to the floor in a session that, a part of the session teasing out the issues. So people are invited to begin with comments that they'd like to intervene at this point given what's been said.
I'll just say generally that I think we see that in terms of legal regimes that are impacted by internet intermediary liability, running the gamut from defamation, insult laws, blasphemy, protection of children, gambling, copyright, and domain name registrars. There are a whole host of contexts and legal regimes that are impacted. And part of the discussion is understanding those individually and collectively and how we should treat internet intermediaries.
I would also suggest that there are a variety of ways as has already been said to approach the issue in terms of the immunity of internet intermediaries in order to facilitate traditional laws stepping in and connection between individual users for there to be certain degrees of liability and limitations on that liability. And in some context, in some parts of the world as we're learning and as we'll hear from people who are experiencing, in particular Thailand and Pakistan, at the moment, there's a certain degree of strict liability for the internet intermediary for the activity of its users.
So if people want to make general comments about how we might go about teasing the issues. Maybe I could ask the question generally, if these things should be looked at collectively, the legal regimes, or whether they should be seen individually, they should be parsed out. I think that's something that we need to tease out as we move forward with discussion.
Can I ask anyone to Cornelia, thank you.
>> CORNELIA: Cornelia from Microsoft. One thing that seemed to be clear about liability. As I recall from a workshop back in July, we were actually discussing intermediary responsibility, public policy goals. And maybe we can just quickly discuss where this distinction lies because I think that is really important.
>> I'm sorry for misspeaking. In terms of the possible reactions, laying out, I think if we also include immunity from liability. This is how courts deal with it and how the internet intermediaries, what their role is in that context. We've already had to correct it, and I appreciate that. This panel is about internet intermediaries. I think the range of those things would include the internet intermediaries and the processes that accompany that in dealing with social problems.
>> Audience: High name is Somalia. I work in the European parliament. So this is about free speech now and regulation surrounding intermediaries and the role in that. But I think a much bigger problem now than states and governments regulating around gambling and intermediary liability is the fact that states and governments are actively encouraged to promote self regulation. So state action now is required, but mostly to keep intermediaries not liable by law, like we should force them not to be liable and to promote information flow through their tubes. Currently, it's not done. This is kind of like the same issue but the complete reverse.
>> What do you think, what are your personal examples from your countries or your stakeholder groups, what's your view on this? Should we force it or not or should states do that in this context? Any examples from any of the countries around the world?
>> Hello. I'm Brenton Thomas from Australia. I work for the Australian government.
I guess the examples that we should think about are is, where public opinion is going to finish up between almost like the complete freedom that might exist in the online world, particularly when the internet started as some speakers have mentioned, and where we might finish up in the offline world, which has a very, very heavily regulated approach.
It will be consumers and the public that decide where between those two points we finish up. An example, for example, that we're looking at within Australia, it comes with a question of the delivery of triple zero services, emergency telephone services. Over the old circuit based system that we used to have in place that exists in most country, the telephone, it was a legal requirement to provide this service and make sure it worked effectively.
In the online world through use of voice over internet protocols, the same sort of service can't always be delivered and yet it is an expectation from the public that this emergency service will always be provided.
So there's a real challenge for regulators in this, a real challenge for government who have an expectation from the public that they have to deliver this service, but in some cases it just doesn't apply sensibly to the online world. Part of it is going to be about both industry and government talking to the population about how things actually changed slightly in the online world. And perhaps we finish up with a point somewhere in between complete freedom and the very, very heavy regulation that exists in the broadcasting and telecommunications world at present. So hopefully, we finish up with beater situation, but I don't with a better situation. Hopefully it won't be at the endings of those two points.
>> Also to suggest one thing that we hope to tease out as part of the issues is what the different types of political and legal pressures do in terms of the impact on human rights and on individuals and on the internet and intermediaries themselves regardless of the intent of the regulation, the practical and political outcome of what happens with the full regulatory models is significant.
>> And these issues, we would like to hear you as users what are your thinking. For instance, about this examples. What do you think as users of these services? What's your opinion? Do you have any strong feelings about it, or you're just not quite sure whether you would be strong about liability, non liability?
>> Well, maybe we should move on to the examples.
>> Yes, definitely.
>> We have a lot of people here who are in the middle of, a part of active issues and debates and legal cases that we're going to have speak. And Pedro from Google will tell us a little about the case that took place, some of you might have heard, in Italy.
>> Hello, everybody. My name is Pedro, senior policy counsel at Google. The thought is to share with you some bad experience that we had in Italy in connection with case law. We have three employees that have been convicted in Milan in a criminal case that represents a great threat to the internet development of freedom and openness. And this resolution was totally inconsistent with national... and also the original European framework for protection of intermediaries of the European directive.
I would simplify the facts. I will give you a little bit of background about what happened. This conviction stems from an incident in 2006 wherein a student at a school in Turin, put on Google media, kind of the grandpa of YouTube, that showed them bullying a school mate. The video was shooting in the classroom, showing an autistic boy being harassed. The student made fun of him and made very awful comments on him.
Also one of the perpetrators faked a phone call with an association whose name is BBDAM. And he asked this association to come up and pick up this guy from the classroom. And this is important because this case is known as the BBDAM case. This association also came up it also is part of the incident.
So this video was online. Google removed it immediately after being notified about its existence. And it was in line with our policy to remove any content that violates our terms of service. The Italian authorities wanted to identify the bull ease and bring them to justice. Unfortunately, they have been prosecuted, also.
In such cases, that's where the involvement of the internet it's against our terms and policies. We take it down when we have actual knowledge of the infringing material. And as companies, we do not create the content. We are not responsible for the content of what people upload to the net. But even so, in February much 2010, an Italian judge convicted three Google employees including our vice president, chief legal officer, our former chief financial officer, and our global privacy counsel for failure to comply with the Italian privacy code.
There were three six month suspended sentences. The first charge was criminal defamation against a boy and the BBDAM association that was mentioned in this fake telephone call. And also failure to comply with Italian privacy code. One of the Google employees had an involvement with the uploaded media. They knew they produced. They they didn't produce it, view it, film it, or upload it. There was no connection with that media.
Ever since the rulings means that employees of a hosting platform like Google, like platforms like we know like social networks, are criminally responsible for the content that users upload. We, of course, appealed this decision. It's under appeal right now. And it not only represent as big threat to our company but also to the whole internet environment.
So I would like right now to describe why I say this verdict is wrong. The judgment is grounded on the Italian protection code to justify this conviction. It says that Google disobeyed the law by not offering the youth who uploaded the media enough information about their obligation to respect the subject's privacy. The Italian protection agency precedent, Francisco this is an incorrect interpretation of the country's privacy law. He says that this sentence is a work of legal engineering and contains technical errors with regard to privacy.
And in fact, if you are aware of our terms of service and how we work, we usually make easy for users to notify of infringing content. We have taken a lot of positive measures in order to avoid these measures. We have a set of conduct within our services. So we have it all also working with many NGO's, many organisations in order to eventually have the wide use of information and communication technology.
Finally, it is important also, this Article 13 does not contain any provision for it's just calling for civil penalties. So I will try to summarize this a little bit. One of the facts is that the judge only considered the facts presented by the prosecutor and not from the defense. There are issues like that this judge had, he didn't notice that Google Italy played no role in the media, a question of jurisdiction here. Google Italy had no involvement in the media. In addition, the defendant had nothing to do with the media. And usually in order to obtain a conviction, they have to prove that the defendants acted with an intention to profit. And this was not the case because no advertisements were ever placed against this media. And indeed, Google did not even sell any ad inventory at all on Google video at that time.
So those are kind of some of the facts that support the case. So who is really responsible for this? I say that for all of us the answer is clear is that the bullies who took the video and put it up are responsible. It's important to note that the victim himself withdrew from the case because all this exposure of this case, it has a lot of coverage over TV also hurt him a lot. So he decided to get apart of the case for those reasons.
The judgment, it seems to recognize the weakness of its own reasoning, besides common sense such that there were insufficient status on the books to justify a conviction. This is a new law from the bench. And what is more important, it has a total disregard to the European directive and all the sets of tradition that it has in terms of intermediary liability and, for example, that the intermediaries has no obligation to make active searches for illegal content, for example. And also the European directive also draws a clear language between those who develop content for the internet and those who provide the means and the tools to make this content publicly available.
So this also has a total disregard with other case law that has been developed in Europe. For example, we have some precedence in Spain where the data protection agency has backed up YouTube. For a resolution of the Spanish DPA from June 2008 where they fined neighbors of the association of Monterra, it's an area of Madrid that has a lot of prostitutions. They were filming the activities of the prostitutes around and also they were filming the clients. They posted the video on YouTube. The DPA was cleared that the platform did not have the platform did not upload the content. They were not the controllers. So it was an association that upload the content without the consent of the people that were being filmed.
So this is for us a very important case. Depending on the interpretation of the European directive and sometimes the ability of a judge to just disregard existing framework, it's quite a problem for the internet development. And of course, if you analyze this in light of how this will have chilling effects on speech, it is quite clear. Imagine that this video has been posted in a platform, not Google right now. Google has been very successful and has resources to finance litigation abroad. But what if it's a small platform that is starting, or if it was Google many years ago or YouTube many years ago when they were starting.
This may take them out of business. And this is a clear chilling effect of the speech, this threat, even the impression or have a penalty. We had examples of this in our countries. And this kind of cases have been this is not an isolated case. We have cases similar in Argentina in connection with search results where celebrities that range from Dia Marona, a soccer player, to B class models that they just sue Yahoo, micro soft, or Google because they don't like the results that they find when they're searching there are names or some Web sites use their names for other activities. But they never go against the Web sites. They go directly to the search engines. Sometimes when we see very broad requests that says like, please well, they never say "please."
For example, we see requests saying that, we have to remove all content that relates to their names to improper activities.
>> Thank you. Before moving on to another case, we will have questions after all case studies. So please, we'll have another case study and please remember your questions. Thank you.
I have Mr. Patrick Sellers who will sell us a little bit more from about ACTA and their case study from their point of view.
>> Thank you very much. And thank you for the organisers to let me present this case. We heard about the ongoing case in Italy, Google. Another ongoing case of the ACTA negotiations where we hear that the negotiations will take place in Tokyo later this month.
The leading operator in the Baltic region, closely follow the developments of ACTA. Let me start by giving credit to all of those in society and governments like my own and members of parliament in Europe that work for transparency as to the ACTA process. For those of you who haven't followed, ACTA is the Anti Counterfeit Trade agreement, multilateral agreement being negotiated between ten countries in the EU, 27 countries, been negotiated to establish standards on intellectual property rights enforcement. If there are concerns against ACTA, it must be said now because it will conclude in Tokyo later this month.
My first point about the ACTA process is just this, that it is difficult to have an informed discussion today at the IGF, in the industry, with civil society based on leaked documents. So we call for transparency on the ACTA documents and also the ACTA process
The latest document shows that or indicates that the provisions as to intermediate liability have been improved. But there are still concerns as to the contents. And again we haven't seen the final document.
There are calls for intermediaries to police the internet that pop up again and again. And also in the ACTA process and there's also still provisions that I will get back to in my intervention. Generally, we really need to distinguish between the society, the principle that has been embraced by society which is called the Merr conduct principle, i.e., for access providers likewise with the personal offices to be intermediaries, not to intervene with content as such.
We have to distinguish between that principle, which I, my feeling and understanding is that the principle is being embraced by most of us in society on the one hand, and on the other hand some copyright owners claim that operators should take on to effectively address copyright infringements.
So intermediaries are private companies. Private companies should not police the internet. One important argument for this is that if private players should be forced or pushed to be liable for content posted by others, then we, as we have heard earlier today, the freedom of expression would be greatly diminished. Why? Because it's obvious that intermediaries were to be made liable for content disseminated, published by others, the intermediaries would strive to reduce the liability risk. Intermediaries would overcompensate and take down even lawful content to reduce those risks.
To make it clear, access providers could not and should not employ policemen and judges within their organisations.
So with this background, let me raise my third and last point or, rather, concern with the present ACTA text. And the text present is based, August 25. In Article 218.3, it reads, "Each party, i.e., states signing the ACTA agreement, each party shall endeavor to promote cooperation between the business community to effectively address copyright infringements."
And then there's also verbiage about preserving the freedom of expression, etcetera.
What does this mean, effectively at risk. Today, at least in Europe, there is no mandatory requirement leading to operators to assist in producing the internet. We would recommend the ACTA not to bring such a system about. That was my intervention. Thank you.
>> Thank you very much. And we will have time for questions after one more presentation. We're very grateful to have remotely participating with us, Constantino Carmichael from the faculty of law and also a member of the ICANN working group. And so there are issues regarding the pressure and the roles and responsibilities of domain name registrars. We'll hear more about that as soon as he's already on the screen. Okay. Thank you.
>> CONSTANTINO: Hello, everybody. I hope that you can hear me. Thank you very much for inviting me... I am echoing right now. Sorry about that. I think that on the previews, speakers have said that the time of this symposium is very timely. Internet liability seems to be the battle world currently with the Google case as well as with ACTA. In the domain name industry, intermediary liability has been of great concern for almost 10 years. The domain name and associated Web site, e mail address of servers is also disabled for most users. Domain name registries or registrars becomes a prevention of expression. And in this brief talk, I will try to cite very quickly.
First of all, which is extremely current, we have domain names that are dealing with sensitivities. The second one is trademark protection from registries. The third case or study is when the registrar will study suspected domain name base. And last and certainly not least I'm sure is the role of domain name registration in identification of users in China.
First of all, for lawyers like myself, we always seem to distinguish between forms of intermediary liability, the x factor and ex poste. When it comes to ex poste, the intermediary is only responding to behavior that are issues by competent authorities. Responsibility on the other hand, intermediaries exploit the behavior that is associated with illegal at or illegal before it happens.
Now, when it comes to centralized global control over market entry into the registered business and its globalized structures, it seems that it is in a position to impose many forms of... when you deal with the registries. As a general comment, registrars must... trademark lobby before they're even allowed to register a business. This affects expression. In order to appeal trademark commerce, new registries in 2004 are implemented... trademark that survives... even when those names might be useful, be used politically by others in critical expression in business.
As a condition of allowing certain market entries, trademark... target... domain entry such as the registered trademark names in all registries. As well as the dissolution process which basically asks the registries and the director to proceed with the... content. Another example is came from national government controlling the use of names in regions and domain names. National governments have assessed... to approve the use of domain names and geographical names even through existing national and international... it has existed
(Overlapping speakers) .
>> I'm sorry, Constantino. Due to technical difficulties, sorry, we're going to have to
>> In circles
>> I'm sorry. I've been told that due to, I think, broadband on one end or the other end, it's very difficult to hear you in the room. It's too bad. I'm grateful for I think we're going to move on to some of the many speakers that are in the room. And we thank you very much for taking time out to speak with us and apologize for the technical difficulties and also to appreciate the extent to which trademark and domain name registrars are a part of the story that internet intermediaries, especially IGF when we talk about domain names in various contexts, the removal of the domain names are very relevant.
We'll move on to some questions of the speakers so far. And go ahead.
>> Hello, everybody. My name is Rosen. I work for the European commission. I'd like to make a comment, just throw a few points, a few stones in the pond for discussion from me.
I will need to ask for your patience because the comment I'm going to make will not... for the European commission but as a citizen, I'd really like you to keep that in mind. This is not an official position of the Commission.
The intervention by the... I really do not want to prevent the freedom of expression of Google in expressing its opinions but I do, however, think that this is problematic to present one side of the matter in a judicial case which is still ongoing. The Italian court... judicial circumstance was, we have been... in the judicial process felt that is to develop discussion. They should really try to show all the parties are able...es pegs place the Italian case which only allows slightly more complex, what is represented. Having said that, pit back my European Commission hat, and just say ... the role of intermediaries, this as many much you may know for the European commission, now wanting public... electronic comments on their... and qualified exceptions for the ability of intermediaries. I would encourage all of you to visit the Web site of the European Commission and send your comments if you have any, if you have a question. Feel free to make comments.
I think that we need to also contribute, to build upon... should address this issue of globe at a global level and somehow us, then we go to a separate commonality that goes to a global level. However, we should not forget that the policy is concerning internet intermediaries, there is an exception, are meant to be... and that depends very much on the particular political environment, culture sensitivity, framework, connect one for freedom of expression. There is a value on the principal of human rights. Even less the approach... had with the members... freedom of expression is likely different... extension for liability is conducive to freedom of expression.
If we want to have a good discussion about it. And the second, this is not making statements on the commission. We very much appreciate to hear the use to reflect on this tomorrow I can. What we're really talking about, the gentleman just before me, referred to the conduct exception with the... this was the... for directors up to a few years ago. It means inspecting the I'm not saying it's illegal, but it depends on the particular situation. What you have to keep in mind is that the important condition for intermediaries to be accepted is that they do not have actual constructive knowledge of the content that is legal or potentially illegal. This is how the changing nature of internet. It is changing. Does this change the way in which you should approach the liability in a marginal speaking, what should be the framework, it should be the framework to develop the policy objectives.
I want to you think about internet... and think about... but I'm sure.... if you continue to think about the internet intermediaries, still in 2000, 2002, there is a risk... because things are changing and it is not riddled with... to think about the potential, stress the potential without keeping count of the nature of the change as well.
>> I'm going to Constantino sent me his remarks. I'm going to try to finish off where he left off. When I think we lost him, he was talking about ICANN as an intermediary, what they do acting as an intermediary.
He was about to go into a description of the morality and public order work that is happening there now in a working group. And for him, it's perhaps most important issue of this workshop and it concerns the censor ship of names that can be used at the top level domain.
There are no global standards for freedom of expression and yet through ICANN governments that have raise cultural, linguistic or national sensitivities. In essence, they are asking for the right to object to and veto any domain name stream that offends them.
Constantino, he also wanted to mention two other examples much intermediary responsibilities at the national level and also one from the private sector. In January 2007, domain name registrar go daddy suspended the domain name sex list because of the complaint about one page. The page contained a list of user names or passwords that was already all over the internet. Seclist contained a site where the security problems could be documented and that listened up there.
Godaddy took down the domain based on the request and did not consult with the site operator. Of course, the registrar industry is competitive and it is possible for them to lose their business because of such practices.
Another example in China, as part of authority's ongoing censorship attempts the government has asserted more control over domain name registration. They're trying to implement a real name system that requires extensively personal documentation to be provided before a domain name can be registered. This can and is designed to chill speech by making users more easily traceable. End remarks.
>> Thanks very much for completing his comments. I appreciate that.
>> Thank you.
We have another question here.
>> Audience: It's a comment and a question. My name is Nicola. I'm from Trent University in Italy. I'm going to say a little bit of, about the case. And I speak for myself. It's not an official position. I often disagree with myself.
You are free to say whatever you want.
First, I mean, I disagree with the decision of the Italian judge. It's complicated. So it's the not so simple as it looks like: There is one thing that is interesting, the decision was more than 100 pages long. And about 80 percent was what prosecutors said and just 20 percent, around 20 percent was the what the judge said. So you can imagine where it would be going.
As for intermediaries, I think that they should not be labeled... notice period. I mean, it's not their duty to say what's legal and what's not legal. And because then as the professor said on the first year of law school, law is in the end what judges say. We can't agree, but in the end it's not.
So if we get rid of the liability, from the moment that a judge says or public authority says, okay, you have to take this down from then on, you are, the intermediary is liable. But earlier, it shouldn't be, can't be, because if they are the most good lawyers, in the end it's what judges say.
About the other case, one thing that is... what was said was that there was an agreement with the victims. There was compensation payment to the victim from Google, a confidential agreement. So I don't know if it's true or not, but if it is, it's likely that it is, probably there is a different light to see, to use the victim withdrew as an argument for discussion.
The other thing about the decision is that it was said by the prosecutors and then by the judge that the officers of Google weren't cooperating too much with the prosecutors. And there were a lot of, "I don't know, maybe."
And so the judge said, okay. Google are the most important or one of the most important, I don't want to companies. And they are not an amateur, they know what they're doing, or they're hiding something. You probably know by now that Italian judge and Italian prosecutors are quite touchy. And so not cooperating was not a good idea.
>> Thank you.
>> Thank you.
>> We will discuss later on, and actually we are, after we discuss the specific case studies, these are just examples. And these are just introduction into the next part where we want to see, what do you think about basic principles that should be applied in this field. So you have enough time to argue about this.
I have another intervention here, from the Serbian data protection office.
>> Yes. Thank you. But I'm actually not speaking on behalf of the commissioner. I'm just speaking on behalf of myself. I want to focus on the legal effect that produces on the internet service providers and mostly on hosting providers who are not responsible for the content in most of the legislation.
But focus on something that was mentioned at the beginning, how the end user feels about it, about the rules. There were some surveys, although not many of them, that showed that there is a mass chilling effect of rules that incorporate law, done in the U.S. back in 2008 and 2007. They're not always reliable because not many ISP's are responsive to the question of some of these scientists.
There was a survey in the UK following the Demon case which was clearly a defamation case that happened in the U.S., it was a UK provider that provided access to the content, in a UK court and found that many UK based ISP's were just removing the content without going into details whether the material was defamatory. Risk any liability, any case against them.
Sometimes even not taking materials. I don't think that's fair to the end users that posted the material. So maybe that should also be taken into account while thinking of designing some new rules or maybe to the end user. And above all, there is no responsibility if the allegation is made in a way lawful because according to the service, for example, there are many copyright notices that are actually not dealing with copyright at all. They use it for to fight competition, to fight against it. At the end, it's about the end user. We should take it from the perspective of human rights, and freedom of expression is certainly one of them.
>> There is starting to be a long line of comments. We do have some people, there are some cases, it's clear that everyone is quite familiar with the Italian case.
There's another case that I urge everyone to follow more closely. We're very grateful to have June Pienic. I hope I didn't butcher that too bad. We've met in Bangkok, there's another case that I hope people pay attention to. And we're going to hear a little bit of background on where that is and what's happened so far.
>> Hello. Okay. I would like thanks for the opportunity to talk. It's about the situation in Thailand and about my story, when I heard about Google's case in Italy, yes, it's true that Google is a big company. You still have a chance to survive. Like the small platform as I run is not easy at all, including in the situation of the country that the implications of the new... questions right now. So I think there's a lot of challenges that I have to face right now.
I work for Pegatai. It is an online newspaper in Thailand that provides news and articles like social and political news. We are like a nonprofit organisation. And we also provide open space like in a web forum discussion for people to exchange ideas as we believe in the freedom of expression for people to share their own ideas as like a author.
So we do the kinds of things like this. In October 2008, there is someone... the users in the web forum discussion posted content. And I've been summoned from the police to give the information of the poster and like right now, we have the Act that requires the provider has to keep it for 90 days. The official has to authorize to request the information that the provider has to give. And we could not say if the information is written 90 days, it's our duty, if we didn't keep, we can be punishment. And if we didn't give them, we can be punishment as well.
So in many case, there are after it was in force, I've been summoned by the police over ten times. Most of the case are the case that the content posts longer than 90 days. So I didn't keep the log. I tried to keep the information, the data as like the law requires, but that's one case that is still within 90 days. I feel sad that I have no choice that I have to give that IP address of the user to the police.
Because of that, it seemed like later on, I didn't think, okay, this is a... a difficulty feeling that I have to face with because I believe in the concept that people can share their thoughts, their ideas. I agree with them, but... just opened a space for people to share. It doesn't matter if there... we also have a concept of equipment among us like... anything that is considered to violate the law, we already inform, like we have the right to take it down without the permission, without asking permission to take it down. We already did I spent like time so much on the mundane, we didn't approve the content before because it's like a forum. So there is like a different forum. So I will do monitors, like I spend time because I know, like the law that I need to comply with. So this is a kind of thing.
In March, the police came to my office. And they also like come with a search warrant and arrest warrant. And I've been arrested on that day on the 6th of March. And then also like confiscated my laptop, my personal laptop. I didn't take it as anything illegal or that I should worry. But it my family photos. It's my personal things. It's not about my work at all. But I'm not accused of... the current procedure in the process of the areas of the kaiser that can be dealt.
Actually, it was done with an issue about due process. That's quite important in the kaiser, like intermediary have to deal with a kaiser like the charge. And right now I've been charged with like IP, they call the charge according to the numbers of the topic, like there are ten topics. And each topic counts as one charge. And each charge, the penalty is a five year jail term.
>> Thank you very much. Now after hearing some of the case studies which illustrate where we are now globally, what should be the principles, main principles in self regulatory and regulatory approaches? Where is it that we want to go?
Before that, we first would like to reflect on what should be specific roles and responsibilities of different actors westbound the human rights framework and. I'd like to induce the professor introduce the professor.
>> Thank you very much. So I have been asked to elaborate shortly on some of the issues at stake here and also maybe at practices of different levels. One idea in particular was, to what extent could the principles identify... his support on business and human rights, also made: To be used on that particular situation.
First I would like to point out to the chart on human rights and principles of the internet which we have presented this morning on principles of the internet and say that there is something there on freedom from censorship where it is clearly said that internet service providers, search engines and other intermediaries that force the governments to implement censorship, should inform users of the censorship criteria being used and specify development laws and regulations requesting them.
So it is a principle of transparency at least which is requested to be used also for the sake of protection of internet service providers against undue treatment from the government or society. And indeed it is an issue of protection also of internet service providers that they should not, for example, be forced by the police to provide... but only based on the law and based on the proper procedure, preferably the judge. And I give you one example of what could become good practice. This is the Brazilian: To regulate rights on the internet. And there was a section for content removal where it says, the internet connection provider will not be liable for damages resulting from content generated by third parties. And he has to remove on the eve received the court order. And it only if he is, the internet service provider fails to comply with this order, he becomes liable.
And I think these are principles which are of use in the general sense. Coming to the I also wanted to point out a few guidelines on internet service providers and human rights. We have several of them which give us some guidance and disrespect. But the report on business and human rights, you might be familiar, some of you at least, that he proposes a three pronged approach, that there is, first of all, a duty of states to protect citizens against human rights abuses by business and in that state if there is a rule or law or regulation, business has to cooperate in this protection. For example, when it comes to defamation, privacy, and so on. But this has to be based on the law. And then there is a second bunch, which is about the duty to respect. And in this context, the principle of due diligence plays an important role, meek that internet service providers as companies do at least have the responsibility to provide transparency. And they have to provide due diligence in avoiding human rights violations. Maybe not one cannot expect from internet service providers, intermediaries that they do an impact assessment in any particular case. But in a general way, that should not be excluded either. And the third part of this approach would be that there should be access of victims to have effective remedies, both internally and externally, traditionally and non traditional mechanisms. So I think this is also useful to see what are the existing grievance mechanisms by intermediaries because certainly they are complaining if they become, let's say, a victim of a violation.
But they also can produce violations, and what then are the grievance mechanisms. There are obviously two sides to that again. For example, if a Web site is blocked without consultation as we have heard of those affected by the situation, then this would be also a violation of due process. And there should be traditional and nontraditional means to deal with violations. People feel that they become victim of a human rights violation by an intermediary.
So those are the two sides to it where one can make use maybe of these various legal and human rights principles. Thank you.
>> Thank you. You mentioned the Marco Sevine, the Brazilian effort to articulate some of the human rights principles. We'll hear from Carlos Alfonso DeSouza of the foundation. Rio has coordinated with the department of justice on the Marco review, and we're grateful to hear about the status and the issues.
>> Thanks, Aidan. I'll be very brief as we as I don't have much time. Just to explain a little bit what is the Marco process that helps. The Marcos review process, we are translating it as a civil rights framework initiative for the Brazilian internet which means it is a process that has been going on for almost a year now that joined together the ministry of justice and us at law school to try to create a platform in the way people can contribute in a collaborative, in an open way to the construction of sort of a bill of rights but we are not calling it a bill of rights because it is much more than to have some principles and some fundamental rights spread out in a number of articles because it deals with liabilities. It deals with open governmental data and other steps.
The second point was, during this process, we had two days or 45 days in which people could contribute, first of all contribute with comments and debates regarding the general principles that should guide this framework. And the second phase based on the contributions that we received in the first phase, we end up giving two general comments, a draft that received almost 2000 technical comments on the wording, on the principles, of this draft. So what happens, and I think it's important here for your debates regarding intermediary liability as Wolfgang has mentioned, we have an article that was quite controversial, Article 20 of the civil rights framework, that is in its first wording. It says something like, intermediaries will not be liable for third party content unless they are dually notified and fail to comply with the notification.
So it was a sort of GMCA, like notice and taking down like system. And this was very interesting because a great majority of reports of the community that were discussing the debate and this issue at the Marco platform starting to react to this wording saying it was it wasn't good because it was preventing, it's not the case, but it was creating a way to have content removed from the internet without judicial analysis. And from a Brazilian perspective, the Brazilian his there, like if we go back 40 years, they are demands... from the perspective on the way things were running Rizzo. People associated that with censorship because content was being removed from the internet without judicial analysis because the provider will do the intermediary will do it. It was quite interesting because not only the users starting to argue that but also we had very strong reaction from the press. And from the press, it's almost natural to see how they react to that because for them, it was the possibility to have content removed without going through a judicial analysis, without going through a judicial exam while at the same time, it certainly will put up a process that is not as flexible, as fake as it could be in the first wording. So as this process is a Democratic process and a collaborative process, that means we have just, unless she decides to change the wording of this Article 20 to reflect the majority of opinions that have been raised in the Markus initiative. The wording that we have essentially is already necessaried. The intermediaries will not be liable for third party content unless they receive a judicial order and fails to comply with such order.
In fact, it's not necessary to have an article like this because if you do not comply with this judicial order, of course, you can be liable for that. But it's important, this article, it's first part. The first part says that the intermediary areas, should not be liable in a way that is similar to the west. And just to conclude. The scenario that we have right now is prior to the Marcus review movement and say, it will end up being a proposal to Congress. But that hasn't happened yet. We are in the final phase of drafting this final draft that will be send to the Congress. The state of art of Brazilian law is a great divide between some concepts that held intermediaries liable for a number of reasons. One of them is product liability, like it's a defect in the product, in the service that is offered. The second one is the broad concept of risk. And this is important. We have a provision in our civil code that says that if you engage in activities that could create risks to damage, violate the rights of others, you could be held liable in a strict liability model, in a strict liability system. And of course, those are the tools that deal with swift liability.
Number of other case law deals with a different type of liability but does leave the evidence of fault. So the evidence of fault would be not to comply with notification or not to comply with the judicial order that was submitted. In any waist, my contribution I think was important. Just that the change in the view, this is a comment that has appeared in some of the interventions here, we started to say if we held ISP's, that could hinder freedom of the expression. The experience we had in Brazil was the count, for especially the press, saying if you put up a system which intermediaries will not be liable. This could be censorship. This could continue, go all the way around in the argument of the freedom of expressions. That's the art in the beginning. That's what's going on.
>> Thank you for a Brazilian example. Now speaking about European approaches, there's ongoing debate in the Council of Europe comprising all union states. The council has developed, in 19 years has developed many, many documents regarding of mass media. So now we have a problem defining what are masked media and what are intermediaries taking over some of the functions and thus should have the same level of protection and those with responsibilities. So we'll have Dr. Thomas from the satellite of communication who is chairing the committee on the media.
>> DR. THOMAS: Thank you. Another angle is to look at what is the role and responsibility and potential protection, maybe obligations of intermediaries in guaranteeing or promoting freedom of expression. So let's take the direct approach once instead of always going around the chilling effects.
The basis of the Council of Europe is that you have to define the freedom first which is defined by the code of human rights, and then define exceptions in cases where you are not allowed to exercise that freedom and you have to define them in a legal procedure. They have to be necessary in Democratic societies. There are a lot of requirements which you have to follow if you want to restrict the freedom. So the approach is freedom first, and then you have to define the limits.
Talking about freedom of expression and intermediaries, in Democratic societies in the last 50 or 100 years, one of the most important years was the mass media. The way the signal was produced, the circumstances, a economic system. The press was regulated differently. Radio was regulated differently. This is a long tradition of regulation. There are cultural differences between European countries, between the west and other parts of the world.
Now with the communications opportunities, the whole media system has become a little bit more complicated. And I say, the protection of the media system to help guarantee media freedom has become a little bit more complicated. There is a conference that was entitled, the new notion of the media, is to try to see how the media system has changed and what implication this has on reasonable regulation of the media system, which main goal should be to guarantee and promote freedom of expression.
What we are trying to do at the moment is to leave the approach of the media according to the technique that the medium is working on, to go over to a graduated approach according to the function that an act or service takes over in the media system. So that means a public service broadcast, the BBC used to exercise all the functions in the media system, which just provides access to information, exercises only one function and has a completely different responsibility, for instance, like YouTube which exercises more function. They do not only provide access, they give a selection of information. They allow for an upscaling of outreach for somebody who posts something. So there are different graduated approaches to whether we call something a mass medium or just an intermediary which takes on some of the functions of traditional mass media and not all.
And we try to see how the current regulation of mass media could be used in order to protect everything who has a role in the media system to protect the... that they are not abuse for other purposes like censor ship and other things which would be a problem to freedom of expression.
Of course, as has been said, there are exceptions that you should define, these cases, the Google case and the other cases, if the role of the responsibility of an actor in the media system gets clear, it gets arbitrary to whether or not what extent he might be held liable. This uncertainty is a very big danger for censor ship and chilling effects.
There was some information about client data of the Swiss bank who then went to court because it was damaging their business. The court declared that this was illegal and forced the ISP to talk down that site.
The provider was held liable for the fact that wiki leaks was putting on some information that the court judged was illegal or having a damaging effect on a company. Whereas wiki leak is the medium who presents this information, this content to a large public, they were blocked but they were not held accountable for what they do. I think this is a good example to think about, which actor has which role in this media system and what is the reliability. Is it really the best solution to block a whole Web site, to force an ISP to block a Web site because there is something wrong on that page, or should maybe wiki leaks be treated more similarly like a traditional newspaper, if journalism in a traditional newspaper says something wrong, you have a right to reply and other established means in the traditional media system and you do not ban the newspaper because something was wrong in the article. That implies the question that you have to ask yourself, to what extent the system has to take on this is a question of Google and YouTube and whoever else, to what extent do you have to take on a certain graduated responsibility for the content that you make available to a global public. And the total responsibility, it's not a yes or no. It's a graduated approach between a traditional TV station or press. And at the low end is the access provider who just provides physical access. Whatever you do in between, you might face a graduated editorial responsibility for what you give out to the mass. Thank you very much.
>> We're going to have Cornelia from Microsoft speak but Ben of this, we actually happen to have one of the litigators of the Wiki leaks case in the audience, and so we'll ask him, Curt Upsall, to make some brief comments on the case.
>> CURT UPSALL: Hi, yes, from the electronic frontier foundation. So I was involved in that case, Julius Bear versus Wiki leaks. I just wanted to make a few notes about the case. There was an order from the court that told the ISP to take wiki leaks.org, the domain name, offline. Jewel just bear had actually Julius Bear had actually filed.
This is not a particularly good example of how the law works. That injunction was dissolved shortly thereafter when the judge was appraised by network people including our team about the various freedom of expression issues that were at stake there. And a couple things to note about, one was that under U.S. law that was being applied, all of this was taking place in a California court, the domain name service provider had no liability. But they didn't properly understand that. And the injunction that led to Wikileaks.org being taken down from the domain name was based on an agreement as between the domain name service provider and Julius Behr, the bank, between the bank and the service provider that got the service provider out of the lawsuit.
This does illustrate some of the pressures that are faced by ISP's as a practical reality with the difficulty of defending a lawsuit, the costs involved in that can actually have a severe chilling effect on an intermediary who may have an incentive to not host controversial speech or not be involved in a controversial situation. But be that as it may, the legal framework was not what provided them with liability nor did it provide the court with any authority to issue that order. To explain a bill bit more about that, first there was the Section 230 of Title XLVII under U.S. law. This is immunity for service providers that will have held the domain name was immune for the process of hosting wikileaks.org as a domain name. And the second aspect of it was the principles of freedom of expression, this was not a narrowly tailored order, putting aside whether or not at the end of the day there was a good case vis à vis the particular documents. They showed malfeasance on behalf of the bank. The bank claimed that it did not and that these were trade secrets.
But putting aside the merits of that controversy, the order would take down all content from controversial, non controversial, whether it's valuable or No. And a core principle for freedom of expression is that any court order that takes down content must be narrowly tailored to take down only the content that is judged by the court to be unlawful content. This is particularly important where a domain name is at issue because many, many things are hosted under a particular domain name. Wikileaks hundreds of thousands of documents if not millions of documents. But even smaller sites will doubtless at least have some portion that is not illegal speech. And so removing a domain name is always going to be a problematic court order from a free speech perspective.
>> Thank you. Thanks very much. Cornelia from Microsoft.
>> CORNELIA: Thank you. I would probably like to start with a few remarks on current discussions in the EU which are somehow related to the to much I can. They are at the end of the still very unrelated in the process, in the discussions. But if you look at them from a freedom of expression perspective, it would be great if you could mark them under that few points as well. As a company, we are in that situation that we acknowledge the responsibility of companies to promote and promote human rights.
At the same time, it is not for a company to judge the content which is on their services. I think there are some sort of exemptions to that which are really extreme, but a company can make that judgment such as child pornography. But in other cases, that might not necessarily be the case. So the reference which we heard earlier on the UN report on the responsibilities of both governments and companies this quite right. In the context of European discussions, it's interesting to note I'm not sure whether that entry oh, thanks.
Several member states of the European union have proposed a directive, a European investigation order which is a good attempt to make data access, law enforcement requests more coherent. And also there might be still necessary improvements to it which will certainly happen in a legislative process. It is also encourage to go see that the European commission has issues an opinion in making sure that the human rights aspects and the privacy aspects in that legs need to be considered. So that is a good prove point that in some instances, governments actually take this responsibility serious. And I would also just like to mention that because that's sometimes also needs to be said.
On our site, we adhered to the council recommendations, guidelines on law enforcement and members of the GNI, the Global Network Initiative. That is our part of the responsibility which we take. I would like to just note for those who haven't heard yet, at this IGF about the global network initiative. The global network initiative has been established late, 2008. It is a multistakeholder including a number of companies, academics like the Brooklyn centre. They have agreed to a set of principles to promote freedom of expression and privacy on the internet and also agree to some guidelines. They are actually really asking for some efforts by the companies. And we are con currently going through an audit internally to ensure that we do respect these human rights obligations. I just want to mention a couple of those operational has committed to imply.
>> We're in the process of doing that, and human rights, train employees on procedure to express freedom of expression and challenge governments. That is consistent with domestic law or international law. A high level of transparency with users when required by governments to remove content or limit access to information. I just would make to mention specifically. There is one very additional thing that it is always very clear which actually do apply to them, Also mutual agreement assistance procedures. They are actually incoherent or some indeed might have to go through a mutual legal assistant agreement to access data. But others, due to their legal procedures in criminal law, might be able to access that data directly. There is an urgent need to make it more behavior after the same time.
>> So in that context, these standards which have been developed in the GNI are apt to be blocked. Nobody can really force governments to adhere to them. We are trying to convince the way in which a company, they can actually be involved.
It has already now started to become a good forum for to exchange best practice.
We're going to move to Troutman, a member of the European parliament. First from the floor, we have a comment from Rebecca McKinnon, who is one of the people who really helped the global connectivity. You see the global network issue. Thanks very much for those who are joining us. Thanks for that.
I'm grateful to have the author with us, Katherine Troutman, a member of social parliament.
>> Just to explain what's happening, now, and what's happened before and constant duration that internet to exercise completely the fundamental.... This is from the UK and Sweden who asked to...So the department was accepted. The consequence of the right... how this new modifications of the directive could be done.
Secondly, the parliament took the occasion to obtain the possibility to be involved completely in the decision on justice and security questions. So this is very important because the parliamenters new competence is important. After that, we head to the debate. These debates took place in the presidency, the French government, wanted to model a three strike. It was a big battle because of the debate and because of the law and the fear that we had that the governments could take. You can enter your personal conversations and different actions you can have with your laptop.
So this was a crucial debate. And on this debate, finally because of one amendment and one word in this amendment, we discovered we could loss all of the package and all the regulations on the mew man dim investigation. The rights to be connect is something. He must be, a judicial proponent.
The judicial process is really right. And we maintain also that the presumption of innocence was also written, which is not a part, essential of the techoregulation.
The first article of the business of the regulation and because we wanted to be very difficult, was as to specify to use. It could be respected. We wanted also to give... that's why we give the possibility to be take it. Some of them, they had some disposals, the implication of... it is the convention PWRAURPBGS.
>> And it is the first time in bringing internet and. This is very important. One of the responsibilities was thought that there are... There are lots of responsibilities. The definition of responsibility is clearly announced and expressed. So this was a requirement in Article 8 in which it gives the recommendations to the regulators.
It is for which they are obliged to end newscast. That is a destination of neutrality, not through what is accepted. Through the end users and the citizens, the population, if I can say. So this is now the busies on which the regulators work on the transmission. The decision has decided to have the consultant. If you want, we will do it. We have a front fence on that neutrality. All of these questions were coming from the floor.
We can use it positively, not just in a fight but positively because we need to see how we can begin, intermediaries, to have a very clean internet. It remains part of us. We need to look on when they give us the capacity on commercial agreements to address or not to agree.
We look at grounds. You can use the text in different ways. So when those, we have to work on the strategy of the decision. This is what will be the key to accept grounds. We decided to pass a resolution about the limites. This is the legislation.
It is important to under stand what is going on. Why? There were many blocking actions. And it failed. There will be aware of rules about what strikes temptation.
>> Thank you very much.
>> Thank you.
>> Another comment from intermediaries or representatives from U.S. companies?
>> Thank you. So I just wanted to provide, I guess, a perspective on what's the way forward based on all the comments. And I agree with all of the speakers about the chilling effect, the potential impact on end user important rights and the danger of the rules or unclear rules or strict liability rules that put providers in the place of where the government should be and particularly when you don't have a transparent process really don't bring out into the public open about the fact.
We sounded like Brazil and some of it is being used in Europe. The way I think about it is, it's not just immunity from liability. It's also defining the responsibility of the union. The more clear the rules are, what do have you to step in, what are the take down requirement, the last I think the real danger of, the active process done behind the scenes is that you don't have the full accountable process that will allow the concerns.
I think the other danger is that. It's viewed as an easy solution as opposed to what is going discussing end users on the internet. Another piece that we... some way to address emergency. I think at least politically and publicly will make to help it harder for those who might disagree. Those are just some other conversations. There is a good discussion about what sounds like a good idea. What the responsibilities are there, we're not going to put it in the intermediary's possession.
>> Thank you very much. We really appreciate everyone's persistence in staying in the three hour session. It's hard. We're going to open to discussion. We have many people who have raised their hands.
Just on what was just said that part of the intent of this workshop, this discussion and in particular the combination of grounds that as we see during the workshop to try to piece it together. It will be an experiment. It plays a role in intermediaries.
So we have, along with the people, he does not need much introduction in the IGF context, speaking about Pakistan.
>>My comments are going to be based on total observations in research. First of all, how do intermediaries come into enforcement of law, is that the first starts within the internet circle as they're registered as companies. Once that is done, there is an application of the national constitution obviously in that people own these companies. But again being an individual citizen, the constitution applies a certain level of restriction. And sometimes even mean going into more of the details of what the constitution says.
The mechanism process for related to filtering, blocking of criminal intent content must be consistent with and not... at the provisions and amendments. This is especially the case consequent upon the recent article. That's the case freedom of information. The article says, called for information, every citizen shall have the right to access, to modern information to access all publics and post where they are so there is an primary indication that there is laws.
What happened recently in Pakistan, which everyone knows that. The regulators are aware of that. The regulator is not actually a policy making institution. It's a legal authority. But it is related to implement blocking and filtering.
An observation from them is that Pakistan has millions of internet users as part of the global community, very much similar for the users.
With the structure, internet is becoming the media of showing abusive holders of public office holders, unauthorized literature of nationalists. Also last minute material. Such internet content... on the grounds of public interest, morality, and national harmony. The situation requires immediate attention as there should be practices of regulating, the national practices of regulating the intent content should be viewed inside the country.
So if you look, countries tend to take examples already set with international context. That means that there's a great deal of policy making which is affecting citizens, and mostly from Europe countries.
Now the issue which is under discussion, the Facebook issue, it has, apart from getting blocked, it was not the immediate decision of the regulator. The petition was filed in court and then it was ruled and then it was taken into order, judicial order. And under that, the government had to take action.
The structure actually starts from something, an exchange which is a government body. And it usually, it has always been said that it is a body and supports provision of the government and the national gateway and so forth.
So what we are now facing, the constitution, the intermediaries will have to comply to the blocking of significant content. The case happened, Facebook was shut down. Facebook was reopened after ten days. It is a pending case. It hasn't been completed. They are still reviewing whether Facebook will agree to remove the blasphemous content.
Also for the same procedure of blocking Facebook. So you see the effect of other... and the list can go on and on. What is happening in, behind the curtains is a very high level blocking and filtering committee, there are rumors. Within that community it is thought there might be a multistakeholder approach to it. It is a system where a... can be sent with the UN and complaint can be filed. And they will look into it and they can make blocking immediately. But we have to see one thing. When Facebook is blocked, so are 600 other Web sites due to the Flickr is down.
This is such a big issue that the constitutional implication, the law that the intermediaries have to abide to, the ex examples that the companies take, when such an international issue comes out, who are we to blame.
So this is a very interesting context that is global policy making is affecting us. Thank you.
>> Thank you very much. Someone asked about bathroom breaks. You don't need to ask.
[ LAUGHTER ]
You're welcome to go out and come back in. I'm sure you've all need towed at some point in this three hour session.
But we actually still have a half hour left. And we want to have a real back and forth at this point. We have a number of hands up. We'll go... if we can keep them relatively brief in relation to the discussion.
>> Audience: I hope. Thank you. Thank you. I'd like to briefly explain the situation in Russia. Quite briefly. At first half of Russian citizens, according to the sociological, in favor of the strict censorship of the internet, in favor of the strict liability of service providers, of content providers and other intermediaries.
Constitutionally, censorship is prohibited by the Article 29 of the Russian constitution. And politically, the precedent addressing the federal assembly that we should lead the way in the media including the internet.
But in the regional federal courts, we have special decisions which are... filtering in different Web sites. For example, in June 2009 in one of the regions in the Russian federation, work platform... was blocked by the decision of the local court because of the existence of extremist content of one of the blogs in there.
People in that republic in the Russian federation couldn't have any access because the providers and the intermediaries blocked. This access, according to judicial decision. Another briefcase
>> Actually, I think in order to facilitate some more of the comments, I appreciate, there are more cases that we'll be able to get into. Thanks for the introduction to some of what's going on in Russia. I hope that we'll all be able to follow some of the developments and share with each other what's going on. I think I've learned about what's going on in different regions. And I think hopefully we'll be able to perpetuate this conversation and learn more. Thanks very much.
There was one comment there, a question, comment. If you could please introduce yourself.
>> I'm Carmen. From Estonia. I have a Ph.D. thesis and also a case pending in the court of civil rights concerning internet intermediary. Very shortly why this concerns especially me as I'm from Estonia, we have a very similar case as Google had with the exception that it's not a criminal case. It's a civil case.
However, the supreme court is of the opinion that whenever an intermediary has any content from third party, which there's no knowledge necessary and if if it's removed immediately, there will be a strict liability. You can't really say anything about it. And this is really a concern. We have discussed mere within this last three hours the concern is quite obvious except after the chilling effects of the freedom of expression, I can't real when I understand how a state can manage to put this kind of obligation to an ISP since the State itself cannot have this kind of obligation to censor because the national treatise and the obligation taken by the state for bits the state itself to complete, basically do censor or like in realtime everything that people are doing or sowing. And the point has found a way to make an illegal entity.
I wanted to say that maybe April of this year, after European court of justice has made this decision of Google adverts, which is kind of like saying that this economic interest and ability to control should not be this kind of considerations, to say that an intermediary should not benefit from the immunity in the directive. So just try to under this as a positive note.
>> Thank you very much. We'll have two more comments here.
>> I'm Alex. I'm here from southwest England. I want to talk with regards to how liable I think intermediaries should be with regards to if their content hurts someone in. For example, if they sent me illegal or dangerous or hurtful to someone else hosed on the side anywhere, at this stage they'll be able to the usual stages, rather than actually the host of the Facebook, etcetera, to be liable themselves.
So some Web sites have reporting systems. So why can't individual users flag up these harmful, illegal, etcetera posts to others. There are a number of legitimate flag, the person as opposed, other than an individual group making decisions, everyone has their say like voting towards whether something is appropriate for this or not.
>> Thank you. One comment in the front here.
>> Good afternoon, everyone. My name is Pramish Farkash. I work in Bangladesh, India. I will try to make my comments very brief. One, my background, two examples in India, and four
>> Let's do a couple of those. Go to the further.
>> So thinking just a brief, one possible way would be instead of focusing on intermediary liable, let's focus instead on the issue of rights of internet users. And we can allow for different forms of intermediary liability that conform with different systems and different countries because funding one might be too difficult to approach. One Mike to look at consumer rights and something that the movement is start to go do and consumers internationals is anchoring, so looking at the guideline on human protection. That is a possible forum. That's just one instance.
To suggest on the points that I have written down, some other people have already covered some of these points. One we have to distinguish between primary and secondary library. Don't get things clubbed, and that actually defeats the purpose many times just by introducing the line. You are make them liable in a way they wouldn't be primarily liable. That's happening when you're talking about copyright in India. We have to be careful about that.
As was already pointed out, we have to distinguish between the different roles that different intermediaries play. The knowledge condition statement, if you have actual knowledge of something that makes you knowledge. And the system of judicial notice is actually set to be introduced in for a specific set of intermediaries are directly directing those research.
Just quickly, talk about some of the examples in India and not provide the situation which you can talk to me about later. In India, the CEO was arrested. Now some parts of there is liability issue was not discussed. The judgment was discussed extensively in the press. An internet service provider was charged which produced a rare person's name when incarcerated in prison for two months was incarcerated in prison for two months and expressed great fears about threats to his life because he was jailed in a state where a state called Hamastra, when he was accused of defamation of a famous person from that state. So he was very scared for his life that if the other inmates actually found out why he was in prison, that they would kill him.
And there is one now, after two months, they said, oops, this was the wrong person. And he has to live with that, with just an apology. So these kinds of of things actually put our discussion of interliability in perspective in a way when will is no responsibility of them being copied and there is no responsibility beyond saying sorry.
>> Okay. I'm sorry. I had a question. The discussion has been so stimulating, thinking about what principles might guide. This I keep coming to a principle that leads me to a dilemma, which is that the principle would be well, if you think of a newspaper, a newspaper is liable because they have an editorial, as most media do. The principle would be that, are intermediaries liable. It's those who edit or those who produce content or have an editorial role be liable, which is quite a tradition
If an intermediary starts editing, they are available. And if you doing editing, take on a because you are becoming an editor.
>> Any intermediaries?
>> Cynthia Rowley, centre of technology. The notion that well, I guess my sense is that intermediaries actually can play a good role in converting freedom of expression without having the threat of liability held over their head. As we've heard from some of the companies in the room, a lot of them do have community guidelines on their Web site that help address offensive content or harassment or that kind of thing. And they voluntarily enforce those, sometimes for commercial reasons but they are protecting the rights of their users.
Just to push back a little on what you said, the approach that's taken under section 30 in U.S. law, not only intermediaries are pro tech from liability from third party content, they also are pro tech if they take good faith actions to remove content that might be offensive even though it's awful. That way it moves in a way to balance all of the various perhaps conflicting or other rights that might be playing out on their platforms.
>> I think, I know someone was going to go next, the CDA 230, and this is the immunity from liability under the U.S. law for those things other than copyright and trademark, I think it's important to note that this is about that part of the intent and part of the investigative attempt was to encourage communities to come up with norms, to perpetuate it in those communities. And that's what we have in the internet. There are certain rules and incentives. For there to be ways to deal with problems and to come up with different solutions where the traditional where law step. The judging rule under the same official. There's a mistake made.
There is a requirement once you are notified and there is the law as it is. And there's community norms to be developed. So I had to intervene at some point and say something.
>> Glad you said that because I can pick up from there. I think if you just... what people said absolutely everything on the internet should be out. If you need those out there, it is the intermediaries are not liable to the law. And they cannot be liable. And you once they know what kind, is the main issue I think we're talking about I think mostly. And there would be different kind of con. It could be kind etched. The communities should evolve.
>> When you say global community, the other times you have to say, let's keep. It is to support freedom of culture, two countries may not get into it, when you say, we should do something about it. Whenever you do something about it. I wasn't sure that there would be something which may not be perfect. But if you are doing certain procedures, let's not go together and try to make harmfully. Absent of that, the Pakistan and Pakistan maybe would have this may not be what Facebook normally did. So the feature idea was growing. And the part is something that we should do next from here. Thank you.
>> Pedro: Just to add something to Bill's comment and also in connection with what Cynthia said. I think that when we're talking about intermediate liability, demonstration of liability, it's important to keep in mind that this is a system that has a lot of it's important to have a balance. It has to do with what we say at the beginning.
This is a global discussion or should be a section to study that is very important or the directive would be very important. And also we need this balance, for example, of the Good Samaritan provision because sometimes they have provisions that says you are not liable as long as you're not an editor. We doubt a Good Samaritan provision of the CDT will imply a racing.
It is the same thing, happening in Latin America, you don't have secondary obligations. Sometimes you're in a city they like internet. And this is what happens in Chile, they have to adopt, I say tropicalize their DMCA and make it, for example, a system of judicial notice and take them.
So this is something important. One solution doesn't fit all. And we need to check the legal systems. But it is a set of principles. And this is mainly what we need to do, which are the main principles that could be in a way implemented in the different jurisdiction that will be very important.
>> TREY HAMILTON: I'm Trey Hamilton, from the International Federation of Library Associations. I want to mention something that is important, and that is the effect on public access providers to the internet. Libraries, as we continue to expand internet facilities and we have wireless networks, are coming up against issues where we are held liable for actions of our users.
In Germany, a library has been sued for the actions of a user who downloaded the movie using the wireless network. We see no additions such as the UK economy act which people drawing up the legislation have been unable to understand if liabilities are internet service providers in the United States.
So there's some chilling effects in terms of what can actually happen to us. So we're very wired in some respects about three strike laws, the labour association in New Zealand had to fight very hard to be exempted from three strike laws which would have ended up with libraries having their connections cut off. I wanted to rise the point that there was perhaps contend which could lead to public access providers. But also for students, and that could end up with filtering on our networks.
>> KAREN REILLY: I'm actually going to expand on this point. I'm Karen Reilly from the Tour Project. There are users that face persecution with their rights of freedom of expression, even with the best of intentions, gathering any sort of information can lead intermediaries with the position of being a single point of security failure.
One approach that we take is to provide a content agnostic network that preserves anonymity by design and not by promise. Even if we end up with a set of global norms and policies, histories show that global natures are fleeting. Those who wish to want, fear of losing their connection to the internet because of copyright facility. This way the states can reach all the way to Tehran. What if somebody downloads music and movie and I get a notice from my ISP. They have secondary effects that are far reaching.
>> I don't see any more hands. We're going to wrap up. There are different types of responsibilities, some of which are for the intermediaries to sort of take the place of and police their networks. But the other is for them to protect their users. And so a government requests information from an ISP about sends a request for personal information about someone who is on the internet through an account that is easily identified.
It is also the positive responsibility, one can argue, of the ISP to protect that user under human rights and make sure that to the full extent, the due process can be reserved, make sure that that's pro tech. I went to fill out, when we talk about responsibilities, we mean different types. I mention one that is included in the global network initiative. EFF, which is, I said, as soon as anyone mentions responsibilities or obligations, civil society throws up their hands.
We're community committed to that quite committed to that process and think that the principles articulated are quite solid and quite strong and are quite meaningful and hopefully will have lasting power.
Lisa Horner did most of the work to make this happen, is going to conclude our panel. Thanks so much.
>> LISA HORNER: Thanks, everyone, for sticking this out, such a long process. But I think it's been a really interesting one and a very productive one.
I just wanted to maybe wrap up, we started with three main kind of broad areas that we wanted to look at in the workshop, we were asking the question, where are we now. And then we wanted to know where did we want to be. And then finally moving forward, kind of what's next. So I think that in terms of what we've been hearing today during the course of the discussion, I think there is a general agreement that there are some dangerous dynamics happening. It's a difficult time at the moment. We've heard about cases in Europe. We've also heard about some positive dynamics in the same continent in which we're starting to move back in the right direction perhaps. There are still some negative dynamics that are going on.
We've heard about cases from all over the world. We've heard from Russia, Pakistan, Thailand. We've had some opinions expressed. Thank you to you guys who have stuck this out and joined us in this process. We heard about a concern of the dangers of exporting bad practice from areas that have traditionally been leaders in the human rights field and the dangers of exposing that practice to countries that are starting to deal with these issues as well.
We've heard about negative effects perhaps on public access providers. And we've heard from the mouths of companies themselves that they do accept some form of responsibility. They don't want to say, "We don't have any responsibility at all."
That's been a clear message that's come out of this workshop.
Also not wanting to speak to anyone here, obviously this is my personal opinion, but what I heard that they also feel that they're not necessarily in the position to make complex judgments that really rely on the domain of the courts. So we still have some complex issues to be grappling with. We won't be able to solve those problems today. We've had quite a range of discussion, I think, around roles and responsibilities and what actually the boundaries are. We started to tease out some of the principles here.
We've heard about the importance of process, for example, with the active process being sited as a less than pros in which there was debate necessary around 6 issues. As well as that, the importance of transparency in dealing with any of these issues. If anything is going on, it is good to be transparent, and also transparency of process.
I think that we've come some ways with finding these roles and responsibilities and looking at them. I know different groups are doing different work and continuing to do different work in these areas. I think that there wasn't really time to explore this issue of whether looking at the regulations and protections that we enjoy offline and whether we can apply these online and whether there is this continuum of responsibilities according to intermediaries. Maybe we can move on, continue with these discussions.
I think that that leads us to say that there was a commonality in times of the roles that different intermediaries play. I think they do support the free flow of information. They do play a crucial role in freedom of expression. We've heard from ISP's. We've heard from social media sites. One of the next steps is to take a look at those areas, what are the roles and responsibilities specifically. Also obviously a crystallizing process, we can learn from each other.
But I think we need to be a bit clearer in terms of thinking about different intermediaries group. We need to think through the different issues as well, how we deal with child pornography online might be different from how we deal with defamation online, for example. We need a more in depth look around those kind of issues to really have different types of intermediaries and different type of issues and see whether it can go.
We're start to go move toward some principles, some sort of common understanding. We should have a platform of moving forward. I think that this kind of process is extremely useful. And if we can start to move toward some kind of international principles, then at least then they might have some kind of trickle down effect into international law to make it more easier, perhaps the companies are trying to navigate these difficult waters or different frameworks in different countries. At least there are ten countries we can refer to. There are checks and balances that are built into that framework to start with is a very useful place to start.
So I know particularly with the organizing group of this workshop to carry on with this work and see if we can start to define some principles, given the experience that will I would urge you to join us in that process if you are interested in participating because we really are keen to take this. I think we're talking about a very dangerous place, and so where do you want to go, we need to work that out together and make sure that we will continue to have an internet that is open, innovative and creative and some of the chilling effects on freedom of expression that you're starting to see: Thank you, a huge thank you to our audience members and our panelists. Thanks very much.
[ APPLAUSE ]
(End of meeting)
Freedom of Expression & Internet Intermediaries: where do we go from here?
- Parent Category: IGF 2010