Intermediaries and human rights – between co-opted law enforcement and human rights protection – PL 03b 2016

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Session teaser

Internet intermediaries are positioned between states and users: their position between co-opted law enforcement and human rights protection and the rules under which they act, from terms of service to national and European law, will be openly and critically debated.

Session description

Internet intermediaries enable communication online. They are thus essential to the exercise of human rights online and both essential to all Internet users and vulnerable to interventions by states. Intermediaries have become managers and adjudicators of freedom of expression and other rights. This is a task they neither wanted nor may be best suited to fill. The intermediaries’ terms of service seem like the actual Internet constitutions, while not providing many rights to users. European courts have approached the human rights obligations of intermediaries differently. But how can be encourage responsible intermediary behaviour? Should the market or the state provide regulation, should we trust in self-regulation or state-regulation? How can we attribute responsibilities in the triangular relationship of states, intermediaries and users? And who should solve human rights conflicts between users, between users and intermediaries and between states and intermediaries?

Keywords

intermediaries, platforms, responsibility, liability, users, human rights protection, law enforcement, self-regulation

Format

Plenary discussion with interactive elements. We welcome strong audience participation and will have a co-moderator with a mic ready to receive your questions. We will also provide remote participation and will have a remote moderator in place.

Further reading

• EDRi Booklet: Human Rights and Privatised Law Enforcement

• Council of Europe, Human Rights Violations Online, drafted by European Digital Rights, DGI (2014) 31, (04.12.2014)

• EDRi submission to UN Special Rapporteur David Kaye's call on freedom of expression and the private sector in the digital age (29.01.2016)

• EU Internet Forum against terrorist content and hate speech online: Document pool (10.03.2016)

• EDRi: Input on human rights and preventing and countering violent extremism (18.03.2016)

• UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011)

• ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights

• Draft Treaty on Transnational Corporations (14.07.2014)

• Recommendation CM/Rec(2016)3 of the Committee of Ministers to member States on Human Rights and business (02.03.2016)

• Recommendation CM/Rec(2016)1 of the Committee of Ministers to member States on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality (13.01.2016)

• Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users (16.04.2014)

• Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a guide to human rights for Internet users – Explanatory Memorandum (16.04.2014)

• Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines (04.04.2012)

• Recommendation CM/Rec(2012)4 of the Committee of Ministers to member States on the protection of human rights with regard to social networking services (04.04.2012)

• Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media (21.09.2011)

• Recommendation CM/Rec(2008)6 of the Committee of Ministers to member states on measures to promote the respect for freedom of expression and information with regard to Internet filters (26.03.2008)

• Ranking Digital Rights

• Dynamic Coalition on Platform Responsibility’s Recommendations on Terms of Service and Human Rights

• UNESCO Report “Fostering Freedom Online: The Role of Internet Intermediaries” (2014)

• https://www.oecd.org/internet/ieconomy/44949023.pdf OECD The economic and social role of Internet intermediaries (2010)

• http://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016805a39d5 Council of Europe/EuroISPA, Human rights guidelines for Internet service providers (2008)

• Report of the Office of the United Nations High Commissioner for Human Rights "The right to privacy in the digital age" (30.06.2014)

• Ways to tackle online hateful content proposed by the German Task Force against illegal online hate speech (15.12.2015)

• FRA/Council of Europe Handbook on European data protection law (2014)

• The right to privacy in the digital age, Report of the Office of the United Nations High Commissioner for Human Rights

• Article 19's Report “Internet intermediaries: Dilemma of Liability” (2013)

• "Manila Principles on Intermediary Liability" (different civil society organisations, 2015)

• Cyberhate: an issue of continued concern for the Council of Europe’s Anti-Racism Commission (2015)

• Governance of Online Intermediaries: Observations from a Series of National Case Studies, Berkman Center Research Publication No. 2015-5 (18.02.2015)

• Offensive Online Comments - New ECtHR Judgment – commentary by Dirk Voorhoof and Eva Lievens (15.02.2016)

• Criminal justice access to data in the cloud: challenges, (Council of Europe, 26.05.2016)

• Welcome to the Jungle: the Liability of Internet Intermediaries for Privacy Violations in Europe (IVIR, 2015)

Relevant judgements

• Judgement of the CJEU, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), (case C‑70/10)

• Judgement of the CJEU, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others (case C-293/12) and Kärntner Landesregierung and Others(C-594/12)

• Judgement of the CJEU, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH (case C-314/12)

• Judgement of the CJEU, Google Spain SL,Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (case C‑131/12)

• Judgement of the CJEU, Maximillian Schrems v Data Protection Commissioner (case C-362/14)

• Judgement of the ECtHR Delfi AS v. Estonia (case no. 64569/09)

• Judgement of the ECtHR Magyar Tartalomszolgáltatók Egyesülete and Index.hu ZRT v. Hungary (case no. 22947/13)

• Judgement of the ECtHR Yildirim v. Turkey (case no. 3111/10)

• Judgement of the ECtHR Cengiz and Others v. Turkey (cases no. 48226/10 and 14027/11)

• Judgement of the ECtHR K.U. v. Finland (case no. 2872/02)

People

• Focal Point: Dr. Matthias C. Kettemann, Internet and Society Research Group, Cluster of Excellence “The Formation of Normative Orders”, University of Frankfurt/Main, Germany

Panelists:

1. Frank La Rue (Mr.), Assistant Director-General for Communication and Information, UNESCO, Guatemala/France [international organizations] (see note 1)
2. Maud Sacquet (Ms.), Public Policy Manager, Computer and Communications Industry Association, Belgium, [private sector] [or industry rep] (see note 2)
3. Michael Rotert, Chairman of the Board, eco – Association of the Internet Industry, Germany, [government]
4. Karmen Turk, Triniti, University of Tartu, Estonia [academia]
5. Martin Husovec, Assistant Professor at the University of Tilburg [academia] (see note 3)
6. Allon Bar, Ranking Digital Rights & Stiftung Neue Verantwortung, Germany [NGOs] (see note 4)
7. Maryant Fernández, European Digital Rights (EDRi), Belgium [NGOs] (see note 5)

• Key participants

• Pavel Antonov, BlueLink Civic Action Network(NGOs, Sofia, Bulgaria)
• Stefan Herwig (Berlin, Germany)
• Jef Ausloos (KU Leuven, Belgium)
• Cristina Angelopulos (Information Law and Policy Centre, United Kingdom)
• Felipe Romero (University of Hertfordshire, United Kingdom)

• Moderator: Dr. Matthias C. Kettemann, Internet and Society Research Group, Cluster of Excellence "The Formation of Normative Orders", University of Frankfurt am Main, Germany (see note 6)

Co-Moderator: Nicolo Zingales, Dynamic Coalition on Platform Responsibility, Tilburg University, Netherlands

• Remote moderator: Matei-Eugen Vasile
• Org team

1. Matthias C. Kettemann, Internet and Society Research Group, Cluster of Excellence “The Formation of Normative Orders”, University of Frankfurt am Main, Germany
2. Pavel Antonov, BlueLink Civic Action Network, Sofia, Bulgaria,
3. Anja Gengo, Bosnia and Herzegovina
4. Stefan Herwig, Germany
5. Karmen Turk, Triniti, University of Tartu
6. Maud Sacquet, CCIA
7. Allon Bar, Ranking Digital Rights & Stiftung Neue Verantwortung, Germany,
8. Maryant Fernández, European Digital Rights (EDRi), Belgium
9. Nicolo Zingales, Tilburg University, IGF Dynamic Coalition on Platform Responsibility
10. Ana Gascon-Marcen, Council of Europe
11. Farzaneh Badii
12. Michael Rotert, Chairman of the Board, eco – Association of the Internet Industry, Germany

• Reporter: Ana Gascon-Marcen, Council of Europe, France (see note 7)

Current discussion

See the discussion tab on the upper left side of this page.

Mailing list

Contact: pl3b@eurodig.org

Video record

See the video record in our youtube channel

Transcript

Transcript: Intermediaries and human rights - between co-opted law enforcement and human rights protection

Messages

• Intermediaries have a crucial impact in how we exercise our human rights online
• Intermediaries cannot be the cheap police of the Internet, they cannot substitute the primary responsibility to protect human rights of the State although they have to act responsibly.
• Limitations to Intermediaries’ liability are basic to promote freedom of expression online and avoid the risk of overcompliance.
• It is necessary to assess the impact on human rights of laws applied to Intermediaries
• All stakeholders should be heard to find solutions to the different issues
• More transparency is needed at all levels

Session twitter hashtag

Hashtag: #eurodig16 #intermediaries

Notes

note 1: Frank La Rue (Mr.) Bio

Frank la Rue is a Guatemalan labour and human rights lawyer and was appointed to serve as UNESCO’s new Assistant Director-General for Communication and Information in March 2016. From August 2008 to August 2014 he served as UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. During his tenure he wrote and presented 10 landmark reports on the state of freedom of expression to the UN Human Rights Council and UN General Assembly.

Key messages: freedom of expression key enabling right on the internet; the impact of state surveillance on privacy and freedom of expression; Intermediary need protection; no co-opting outside of the legal system (not blocking without judicial authoritzation).

note 2: Maud Sacquet (Ms.) Bio

Maud Sacquet is Public Policy Manager at the trade association Computer and Communications Industry Association (CCIA). CCIA is an international, nonprofit association representing a broad cross section of computer, communications and internet industry firms. CCIA remains dedicated, as it has for over 40 years, to promoting innovation and preserving full, fair and open competition throughout our industry. Before joining the CCIA, Maud Sacquet worked for more than five years at Yahoo in Paris, ultimately as Legal Counsel working on notice and takedown issues, as well as law enforcement’s requests for information. Ms Sacquet holds a Master degree in Business law from the Institute of Political Studies of Paris (“Sciences Po Paris”) and a Master degree in European Business Law from the University Robert Schuman of Strasbourg. She also holds a LLM degree in Regulation and Technology from King’s College London, where she graduated with merits.

note 3: Martin Husovec Bio

Martin Husovec is an Assistant Professor at the University of Tilburg where he teaches intellectual property law and supervises an Internet Policy Clinic which works on third party interventions before European courts. He is also an Affiliate Scholar at Stanford Law School’s Center for Internet & Society (CIS). In the past, he used to work as Impact Litigator at European Information Society Institute (EISi), an independent non-profit organization based in Slovakia focusing on the overlap of technology, law & society.

His work within EISi was instrumental in several strategic litigations in Europe. Martin authored numerous amicus curiae briefs related to intellectual property and Internet policy before Slovak and Czech courts, initiated a constitutional review of the data retention laws before the Slovak Constitutional Court, worked on several interventions before the European Court of Human Rights (Delfi AS v. Estonia; Satamedia v Finland) and together with the Electronic Frontier Foundation on an open letter to the Court of Justice of the European Union on Open WiFi.

Martin maintains a well-known blog - Huťko´s Technology Law Blog - devoted to technology law. He is an author of a leading open access book on intermediary liability law in Slovakia and Czech republic. His scholarship previously appeared in the journals such as JIPITEC, JIPLP and IIC and includes papers: "The End of (Meta) Search Engines in Europe?", "Injunctions Against Innocent Third Parties: Case of Website Blocking" and "Much Ado About Little: Privately Litigated Internet Disconnection Injunctions" (co-authored).

note 4: Allon Bar Bio

Allon Bar is policy and engagement manager with the Ranking Digital Rights project, and a visiting fellow at Stiftung Neue Verantwortung. Mr. Bar previously implemented the ‘Odyssey’ project, focusing on digital security for vulnerable communities. He also worked with the United Nations, civil society organizations in Indonesia, Kenya, the Netherlands and the United States, as well as the Dutch government. As a Fulbright scholar, Mr. Bar obtained a master of international affairs degree, with a focus on human rights, at Columbia University. He further holds BA and MA degrees in Humanities from Utrecht University.

Key messages: Intermediaries make critical decisions that impact users’ human rights, specifically their right to freedom of expression and privacy.; The Ranking Digital Rights Corporate Accountability Index shows that across the globe, companies’ are insufficiently transparent and accountable about their policies and actions affecting users’ rights. There are many areas companies should improve on, including on explaining how they deal with user data, as well as their content restriction practices.; Government laws and regulations should facilitate rather than impede on intermediaries’ ability to respect their users’ rights.

note 5: Maryant Fernández Bio

Maryant is an Advocacy Manager at European Digital Rights (EDRi). She defends human rights and online freedoms in the fields of telecommunications, private enforcement, trade agreements and Internet governance. Maryant is also a lawyer specialised in EU, International and Comparative law, with a focus on digital rights. She obtained an LLM in Law in a European and Global Context from Universidade Católica Portuguesa. In the past, she gained experience at the Spanish Ministry of Public Works, CEU San Pablo University, the European Law Moot Court Society, Décathlon and CCA-ONTIER. Maryant is fluent in English, Spanish, French and Portuguese.

Key messages: Governments cannot use their power to avoid their positive and negative obligations vis-à-vis human rights, in particular with regard to restrictions being based on law.; Intermediaries are “voluntarily” restricting human rights and fundamental freedoms as a result of government pressure, in the absence of a formal legal obligation. Who’s accountable?; Can predictability, effectiveness, durability, necessity, proportionality, jurisdiction and competition be respected when any and all intermediaries can unilaterally "pull the plug" on your online presence?

note 6: Dr. Matthias C. Kettemann Bio

Wiki note 6: Dr. Matthias C. Kettemann, LL.M. (Harvard) is post-doc fellow at the Cluster of Excellence „Normative Orders” at the University of Frankfurt/Main, where he is co-lead of the Internet and Society Research Group, and lecturer at the Institute of International Law and International Relations, University of Graz. Having co-chaired the Internet Rights and Principle Coalition and led multistakeholder research groups, he is most recently, rapporteur for the Council of Europe Committee of Experts on Internet intermediaries

note 7: Ana Gascon-Marcen Bio

Ana Gascón Marcén started to be interested in the intersection between law and new technologies (Internet Governance, personal data protection, etc.) as researcher in the University of Zaragoza, where she taught and completed her PhD. Currently, she works in the Internet Standard Setting Unit of the Council of Europe where she acts as co-secretary of the Committee of experts on Internet intermediaries.