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Article published in EDRi-gram 9.2

European Digital Rights has published a study on the scale of measures being undertaken to outsource policing activities to private companies in the Internet environment and its significance for fundamental rights, transparency and openness on the Internet.

Internet intermediaries around the world are taking on more important roles in their states’ efforts to address the dissemination of illegal online content and this trend is likely to become stronger as we move into a new environment of “extra-judicial sanctions” against consumers. With some notable exceptions, these activities are being forced onto Internet intermediaries rather than being demanded by them.

The study found that the term “self-regulation” is being inappropriately used to describe what is not self-regulation at all, but the monitoring, policing and even punishing of alleged illegal activities of citizens. Proposed legislation and “non-binding guidelines” are forcing intermediaries into a position in which they can no longer avail themselves of legal protections – where they are obliged, in effect, to police private online communications, often in blatant disregard of legal safeguards and even to impose sanctions for alleged infringements.

Should Internet intermediaries become privatised enforcement systems? The measures recently taken by Visa, Mastercard, PayPal and EveryDNS against WikiLeaks are a case in point. Even without WikiLeaks being charged with any particular crime, private companies have acted unilaterally against it.

The devolved enforcement initiatives documented in the report aim to persuade industry to engage in a vigilante system of monitoring and sanctioning; the report catalogues current international proposals, which include:
– a series of ongoing “public-private dialogues” organised by the European Commission to encourage hosting providers to engage in extra-judicial rulings of illegality;
– a 2010 European Commission funding proposal incentivising companies to engage in “self-regulatory” Internet blocking of allegedly illegal online material;
– discussions launched by the Council of Europe’s Assembly in 2010 whose intention appears to be to increase the legal obligations of intermediaries, despite the fact that this would be “contrary both to the letter and the spirit of the 2003 Declaration on freedom of communication on the Internet”;
– 2010 OECD discussions, which aim to increase the responsibility of Internet intermediaries in advancing “public policy objectives”;
– the Anti-Counterfeiting Trade Agreement (ACTA) that contains provisions that would encourage or coerce ISPs into policing their networks and enforcing extra-judicial sanctions, where they deem it to be appropriate;
– an OSCE consultation in 2010, the aim of which was to explore ways to enable ISPs to “‘regulate’ online legal or illegal ‘hate speech'”‘;
– EU/India and EU/Korea bilateral free trade agreements that would change the EU acquis on intermediary liability.

The encouragement of extra-legal measures to limit access to information, proactive policing of the Internet and the exclusion of law enforcement authorities in investigating serious crimes are factors that contribute to the weakening of the rule of law and democracy. Indeed, by taking responsibility away from legal authorities, such measures can result in serious crime, such as the publication of child abuse material online, being addressed by industry through cosmetic measures (such as blocking) rather than proper investigation and prosecution.

While these appear to be regressive steps away from freedom, the study found, for instance, that the European Commission appears far from perturbed by the dangers for fundamental rights of this approach and appears keen to export the approach. This process is gradually strangling the openness that is at the core of the Internet. This openness has enhanced democracy, has shaken dictatorships and has boosted economies worldwide. This openness is what we will lose through privatised policing of the Internet by private companies – what will we gain?

EDRi report: The slide from “self-regulation” to corporate censorship (24.01.2011)

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EurActiv Network