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 This is presented as "outdated", but the suggestions in the paper are clearly a continuation of attacks on the fundamental principles underlying the open Internet that began with the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


Reader Comments

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  1. 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?


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