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Deutsch: EDRi und EuroISPA gegen Forderung der Kommission nach Notice&Take-...

EDRi and the European ISP Association (EuroISPA) have prepared a joint civil society/industry position on the European Commission's draft informal recommendation for the takedown of websites which have been accused of being illegal.

The recommendation's scope is nominally restricted to child abuse websites, terrorism and racism. However, the proposal already represents a "mission creep" of aspects of policies used for the removal of child abuse websites and, therefore, further "mission creep" into other areas can be considered inevitable.

The Commission's proposals cover three different scenarios:

a) requests for takedown of websites from law enforcement authorities, legal injunctions and formal legal orders; In this case, the Commission proposed that ISPs should delete websites without further deliberation.

b) notification by law enforcement authorities, complaint hotlines or "other body duly authorised or tasked under national law to monitor Internet content"; In this case, the Commission also proposed that ISPs should delete the websites in question without any further deliberation.

c) notifications from citizens. In this case, the Commission proposed that ISPs should delete the websites in question if they were convinced that they are illegal.

The Commission goes on to suggest that Internet hosting providers could change their terms and conditions to give themselves more legal security when deleting websites.

In the joint letter, the associations argued that the assumption was that the websites were illegal whereas, in fact, no judicial ruling would have been made in most cases before the site was deleted. Furthermore, no subsequent judicial ruling has even been foreseen in this "cooperation".

The letter goes on to question why the proposal was made without any analysis of existing notice systems, the possible negative impact on subsequent investigation and prosecution of the criminals participating in such illegal activities (would these takedowns be undertaken instead of proper investigations/prosecutions?), the size of the problem and the changing practical implementations of the definitions of terrorism and hate speech.

EDRi and EuroISPA pointed out the legal obligations of the EU Member States with regard to the right to communication as defined in the European Convention on Human Rights and the International Covenant on Civil and Political Rights and also reminded the Commission of its own assessment of restrictions to these rights. For example, in the impact assessment for the child exploitation Directive, the Commission points to "the requirement that the interference in this fundamental right must be prescribed by law".

The letter concludes by stating that "finally, and surprisingly, in the context of 'public private cooperation', there is no obligation on public authorities to take responsibility for the enforcement process and to then investigate and prosecute the individuals behind the sites that are the subject of take down notices. The draft recommendations place the legal burden and the onus for the most urgent action on private companies, passing the risk from public authorities to private companies. This omission means that the draft recommendations risk not only infringing the fundamental rights of the accused, but also could seriously compromise the fight against illegal content through the legitimate, established means of law enforcement. Specifically, there is a real danger that enforcement agencies could exploit providers' terms of service to act against suspected legal infringements outside formal legal structures, undermining transparency, public accountability and legal certainty."

EDRi/EuroISPA letter (9.07.2010)
http://www.edri.org/files/090710_dialogue_NTD_illegal_content_EuroISPA...

EC's draft recommendations for Public-Private Cooperation (04.2010)
http://www.edri.org/files/Draft_Recommendations.pdf

Child exploitation impact assessment (25.03.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriSer.do?uri=SEC:2009:0355:FIN...

(Contribution by Joe McNamee - EDRi)