EU Looking To Regulate Everything Online, And To Make Sites Proactively Remove Material

from the if-you-thought-Copyright-Directive-was-bad,-just-wait-for-Digital-Services-Act dept

One of the reasons that Techdirt and many others fought so hard against the worst ideas of the EU Copyright Directive is that it was clearly the thin end of the wedge. If things like upload filters and the imposition of intermediary liability become widely implemented as the result of legal requirements in the field of copyright, it would only be a matter of time before they were extended to other domains. Netzpolitik has obtained a seven-page European Commission paper sketching ideas for a new EU Digital Services Act (pdf) that suggests doing exactly that. The Act's reach is extremely wide:

The scope would cover all digital services, and in particular online platforms. This means the clarification would address all services across the internet stack from mere conduits such as ISPs to cloud hosting services; while a special emphasis in the assessment would be dedicated to updated rules for online platforms such as social media, search engines, or collaborative economy services, as well as for online advertising services.

A core aim is to replace the e-Commerce Directive, passed in 2000. This is presented as "outdated", but the suggestions in the paper are clearly a continuation of attacks on the fundamental principles underlying the open Internet that began with the Copyright Directive.

One of the problems for the EU when pushing through the upload filters of Article 13/17 in the Copyright Directive is that Article 15 of the e-Commerce Directive explicitly states that there is "No general obligation to monitor". Constant surveillance is the only way that upload filters can work -- if you don't monitor all the time, you can't be sure you block everything that the law requires. Furthermore, Article 14 of the e-Commerce Directive emphasizes that "the service provider is not liable for the information stored at the request of a recipient of the service". That's subject to certain conditions, such as being required to remove material that infringes on copyright, but only after being informed of its presence on their servers. The new Digital Services Act wants to force Internet companies to move beyond reactive behavior:

a binding "Good Samaritan provision" would encourage and incentivise proactive measures, by clarifying the lack of liability as a result of Such measures

The paper goes on to repeat the EU's earlier attempts to pretend that upload filters are not a glaring example of general monitoring -- something that EU courts may well be asked to rule on. The leaked document says:

While the prohibition of general monitoring obligations should be maintained as another foundational cornerstone of Internet regulation, specific provisions governing algorithms for automated filtering technologies -- where these are used -- should be considered, to provide the necessary transparency and accountability of automated content moderation Systems.

That's a classic: affirming that general monitoring is prohibited, while bringing in rules for proactive automated filtering technologies -- aka general monitoring. It would tilt the playing field even more in favor of big, mostly US companies, and would guarantee that the EU never produces its own digital giants like Google or Facebook. The other main proposal of the paper is to bring in mandatory pan-European rules for tackling online hate speech and disinformation, drawing on ideas in national laws:

Uniform rules for the removal of illegal content such as illegal hate speech would be made binding across the EU, building on the Recommendation on illegal content and case-law, and include a robust set of fundamental rights safeguards. Such notice-and-action rules could be tailored to the types of services, e.g. whether the service is a social network, a mere conduit, or a collaborative economy service, and where necessary to the types of content in question, while maintaining the maximum simplicity of rules.

Simplicity? - hardly. This all sounds like a recipe for a completely unworkable set of complex requirements that once again will favor big companies with deep pockets and big legal departments. The authors of the leaked note have managed to come up with an option for making these plans even worse: creating a "central regulator" for the whole EU to enforce this locked down, permissioned Internet they want to create. Although this is only an internal paper, not a formal proposal from the EU, it shows the kind of really bad ideas that are already floating around the European Commission, and being seriously considered there. If you thought the EU Copyright Directive was bad, just wait until you see the new EU Digital Services Act.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: copyright directive, digital services act, e-commerce directive, eu, filters, general monitoring, intermediary liability, notice and action, open internet, takedowns


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  • identicon
    Anonymous Coward, 17 Jul 2019 @ 3:57am

    Europe has been here before, in the years following the invention of printing, and that attempt by the powerful to control the words that the population could read ended badly for the powerful.

    reply to this | link to this | view in chronology ]

  • identicon
    permafrost inhibitor, 17 Jul 2019 @ 4:45am

    bringin back the past

    Here come the nazi power. They sense summer is coming and are trying to get their 3rd rike laws in, starting now to stiffle speech and make their transition back to power as smooth as possible. Make no mistake, these things are the product of deluded minds.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Cowherd, 17 Jul 2019 @ 5:12am

    The Copyright Directive already guarantees that the EU never produces its own digital giants like Google or Facebook.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 6:12am

    not in America

    obviously this is just a European problem -- this kind of government/internet mess could never ever happen in ther U.S.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 6:22am

    you need to think back to when all this shit started, what with and where. try the 'Financial crisis' of 2006-7. then add in the ridiculous (but start of what all these new laws are about) 'Right To Be Forgotten'. then we have the equally stupid 'EU Copyright Directive'. the whole aim is to hand the Internet over to the Entertainment Industries (because there isn't a better or cheaper media distribution system on the Planet! those industries dipped out because they didn't think people would accept it over high street purchases. now they want to take total control over who can do what on it but still charge shop prices!) and to give the elite the option of deciding what can and cant be disclosed about their (often illegal, usually stupid) activities! the days of the open Internet are truly numbered and, as usual, it's all about greed and personal information being held back! at the same time, anything and everything about us ordinary people not only WILL be available, it will HAVE to be available! the elite couldn't bear the thought of us knowing what assholes they really are and have been quietly changing things so that their lies and scandalous behavior is kept hidden and their ability to continue coining it in, just as they have always been used, carries on with no one able to find out how or question them. the thing to find out is who is behind what is going on in the EU Commission, who is the lead proposer and what they are getting out of it! someone is being 'encouraged' to propose all these one sided new laws and they dont do it for love!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jul 2019 @ 6:56pm

      Re:

      The days of the open Internet are not numbered and the hand the Internet over to the Entertainment Industries.

      Its unlikely the EU Digital Services Act will pass the new EU parliament.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2019 @ 11:39am

        Re: Re:nope

        All it took were a few “we did not know” votes some misunderstandings about rules “that are in question” and
        Multiple falsehoods on the part of the supporters to get It passed once it’s future was in doubt for article 13 to pass.

        reply to this | link to this | view in chronology ]

  • identicon
    Cynthia M., 17 Jul 2019 @ 6:39am

    geofencing

    Too bad I can't figure out how to geofence completely the entire EU. It's time to get on the VPN to a server outside of the EU and ignore everything inside.

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 17 Jul 2019 @ 6:55am

    Nefarious Plan

    1) Create impossible law that only the rich American companies can even attempt to follow
    2) Sue them every week for 4% of their annual revenue for failure to meet #1 until they go bankrupt
    3) Revise law
    4) Give incentives to locals to replace the American companies services under the revised law that favors them but controls what can be published.

    And as always,

    INTERNET: Damage Detected. Rerouting.

    reply to this | link to this | view in chronology ]

    • identicon
      Hephaestus, 17 Jul 2019 @ 7:37am

      Re: Nefarious Plan

      The plan will end up creating decentralized social media probably along the lines of USENET with a pretty front end. So the companies, governments, NGO's, legacy media companies, and other assorted organizations will not get the control they are seeking, quite the opposite.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 17 Jul 2019 @ 7:57am

        Re: Re: Nefarious Plan

        Unlikely; just look at history. Decentralization always sounds like a cool idea when proposed by some young, idealistic radical... and then it never actually works. Decentralization and consolidation both have certain benefits they bring, but when you compare the two against each other, the lesson that history teaches us again and again and again is that consolidation wins every time. It seems to be something inherent in human nature.

        A good rule of thumb is, if you've got a decentralized system that currently appears to be working well, just give it ten years.

        reply to this | link to this | view in chronology ]

        • icon
          Jeroen Hellingman (profile), 17 Jul 2019 @ 8:41am

          Re: Re: Re: Nefarious Plan

          As a general rule, yes; however, in an environment where centralized and consolidated service becomes a single point of failure, and sufficient demand or need exists for a non-failing system, decentralized systems will be able to sustain themselves, although at a higher cost and with less functionality. What the EU basically is doing, is trying to give the decentralized systems a fighting chance. Whether it will succeed, give it ten years. If we're all exchanging SD-cards by then, as what was once the internet has become as crappy as the EU sponsored news channels, they will have succeeded (and probably be talking about liability for SD-card producers for content that can be stored on those cards....) I phantom EU digital innovation will be in the same state then as the Galileo GPS system is at the time of writing... (https://www.gsc-europa.eu/system-status/Constellation-Information)

          reply to this | link to this | view in chronology ]

        • identicon
          zoobab, 18 Jul 2019 @ 3:22am

          Re: Re: Re: Nefarious Plan

          We need more of those stupid laws as a good incentive to make the Internet 4.0 totally encrypted, and uncensorable. Only then cyberspace will be independent from law makers.

          reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 17 Jul 2019 @ 7:36am

    The case for geofencing Europe out of the broader Internet continues to mount. As I've said before,

    Under the conditions that currently exist in reality, Europe should be considered infested with a noxious and potentially deadly disease known as "liability," and there is no way to know if any specific European user is a carrier until they've infected your site, at which point it's too late.

    Until such time as they manage to eradicate this pestilence from among themselves, the only sane choice is to place the entire EU under quarantine.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 17 Jul 2019 @ 8:56am

      Re:

      And the case against it continues to be that it would hurt innocent people and devastate the global economy, and companies that operate internationally are big enough to fight back while companies that only operate in Europe don't really have the option of not operating in Europe.

      There's also the minor point that legal liability doesn't really work like a viral contagion at all.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 17 Jul 2019 @ 9:09am

        Re: Re:

        And the case against it continues to be that it would hurt innocent people and devastate the global economy

        And? You're incredibly naive if you honestly think that the status quo won't.

        To put it bluntly, collateral damage is going to happen either way; better to contain it to the place that's responsible for the problem than to let it devastate the rest of the world too.

        There's also the minor point that legal liability doesn't really work like a viral contagion at all.

        It works sufficiently like it for the purposes of this discussion: if a carrier comes into contact with your service, there's a non-zero chance of your service contracting a potentially crippling or lethal liability. The only real point where the analogy breaks down is that that liability doesn't, in turn, make you contagious and pass it on to other users, but that's irrelevant to what's being discussed here.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 17 Jul 2019 @ 10:15am

          Re: Re: Re:

          To put it bluntly, collateral damage is going to happen either way; better to contain it to the place that's responsible for the problem than to let it devastate the rest of the world too.

          Ah yes, contain the devastation of the global economy to a particular region. Why didn't I think of that.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 17 Jul 2019 @ 2:09pm

            Re: Re: Re: Re:

            I imagine they'd prefer that the damage be avoided altogether via killing off the problematic laws, but if that's not an option and damage will be done better to reduce it as much as possible, in this case by isolating it.

            reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 17 Jul 2019 @ 9:11am

        Re: Re:

        I think the metaphor works, with a small tweek:

        Under the conditions that currently exist in reality, Europe should be considered infested with a noxious and potentially deadly disease known as "liability," and there is no way to know if any specific European user is a Typhoid Mary until they've infected your site, at which point it's too late.

        Until such time as they manage to eradicate this pestilence from among themselves, the only sane choice is to place the entire EU under quarantine.

        Now I don't necessarily agree we should geofence the EU, but under the liability regimes under development, bad actors can indeed 'infect' a site with crippling liability. Then again, the goal of these regimes is to require the use of prophylactics (aka filters) to prevent the disease from taking hold, but like most prophylactics are never 100% effective. So I guess Liability is an STD, in this metaphor. And this metaphor just got better actually working incredibly well, as we don't quarantine STD outbreaks...

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Clid D. Doris, Member European Parliament, Sweden, 17 Jul 2019 @ 10:12am

    If didn't want to be RULED by unelected bureaucrats in Brussels

    WHY did you vote to join the Union? All the bad aspects were predicted, because OBVIOUS.

    But now that are being put in place, you're a little carping and a little worried?

    Sheesh. And sheesh again.

    Also, "the thin end of the wedge" was begun WAY before you were even born, sonny. All is going as dystopian writers of the 1940s and 50s outlined. If you weren't a no-conspiracy KOOK you'd see that.

    Enjoy your new chains, and your new "diversity" too.

    [
    Screen name is funny because real:
    https://www.svt.se/nyheter/inrikes/svt-avslojar-vansterns-toppnamn-tar-ut-eu-traktamente-i-sin -hemstad
    ]

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 11:00am

    Yeah because Germany and France’s hate speech laws worked just fine! (Sarcasm)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 6:57pm

    Its unlikely the EU Digital Services Act will pass the new EU parliament.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2019 @ 1:50am

    Ghost in The Internet

    This is basically a new type of censorship disguised in copyright protection.
    The problem is that kind of policy will completely break the internet.

    And at somepoint in time people will remember that Encryption, VPN, etc exists and everything will simply move into a deeper underground version on the Internet ghosted inside the Internet.

    reply to this | link to this | view in chronology ]

  • identicon
    Adrian Lopez, 18 Jul 2019 @ 12:27pm

    I wonder if they intend to include any long-arm statutes should this be turned into law. Cross-border enforcement of problematic laws is a huge threat to the health of the global Internet, and very few people are talking about it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2019 @ 7:54pm

    I'm can't say about Hate Speech and other provisions, but you Americans are aware that the EU is taking all those shitty copyright provisions in the name of US Copyrights, aren't you?

    The United States of America, and its corporations, sure have lobbied extensively for stronger copyright provisions, not only in the EU Parliament but also in national parliaments and governments in all EU Member States.

    So before talking about European Typhoid Marys, maybe you should check your own epidemic at home. It wasn't the EU the one that spread the DMCA Virus.

    Just pointing out that little but obvious fact.

    PS: and I also bet that this little paper coming from the EU Commission has a bunch of bars and stars behind it.

    reply to this | link to this | view in chronology ]

  • identicon
    Steve, 19 Jul 2019 @ 3:27pm

    EUSSR

    I read a lot of absurd comment shere like "it will never happen in the US'
    The 'new' EU parliament will nver vote for it'

    bla bla bla.

    Either the people writing these comments are really young or really ignorant.

    1. The eu mock of a parliament has no real powers. More than half of the eu MP's are corrupt third rates politicians who want to tranform Europe into communist China.

    2. The politburo (aka the commssion) is the unelected office deciding on everything but never before having been briefed by the lobbies who control the EU.

    3. The USA is one of the most repressive state in the world when it comes to freedom of speech and the control of the internet.
      The control of the internet and telco by fascist big techs like google, facebook, micorosft, ibm and al... is a guarantee that the internet is dying.

    The EU really took off when the USSR died in 1990 (Maastricht 'treaty': 1992).

    The replacement for the USSR is the EUSSR.

    Why do you think Eastern Europeans refuse the current african islamic invasion, the lgbt BS propaganda and all other cultural marxist enforcment coming from the EU globalists?

    reply to this | link to this | view in chronology ]


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