Privatised online enforcement series: A. Abandonment of the rule of law

23 March, 2011

This article is also available in:
Deutsch: Serie: Privatisierung der Online Strafverfolgung – Teil A

This is the first in a series of articles looking at the development of processes for cajoling, obliging or coercing online economic operators to police the Internet. This first article examines the scale of this trend.

Most western democracies either actively or passively recognise that they are based on the "rule of law" and protection of fundamental rights is normally provided within this framework.

In the EU, for example, the rule of law is affirmed four times in the Treaty on European Union. It is "confirmed" in the preamble of the Treaty and restated in Article 6. The EU also places an obligation on itself to contribute to the objective of consolidating "democracy and the rule of law" in its development policy (Article 177) and common foreign and security policy (Article 11). Furthermore, the European Convention on Fundamental Rights and the Charter of Fundamental Rights place obligations on EU Member States and on the Commission (ratification of the ECHR is pending) that restrictions to freedoms must be based on law. The 2003 Interinstitutional Agreement on better lawmaking which was agreed between the Commission, Parliament and Council further requires in Article 17 that self-regulation must respect criteria of representativeness of the parties involved and "will not be applicable where fundamental rights or important political options are at stake".

All of these obligations have not prevented the European Commission from:

- Launching a "dialogue" with industry on filesharing, which included proposals from the European Commission on "voluntary" mass filtering of networks by ISPs;

- Launching a "dialogue" with industry on "voluntary" deletion of websites accused of containing unlawful material (unless the Internet provider is convinced the site is legal);

- Launching a dialogue on punishments to be meted out by online trading platforms against traders accused of counterfeiting;

- Launching a funding proposal for "self-regulatory" blocking of websites accused of containing illegal content;

- Agreeing on a text promoting online policing of copyright by Internet providers in the Anti-Counterfeiting Trade Agreement;

- Launching a dialogue with the US Federal Bureau of Investigations on "voluntary" deletion of websites and removal of IP address from ISPs abroad;

- Promoting a reduction in privacy in favour of intellectual property rights in the Commission Communication on enforcement of intellectual property rights;

- Agreeing on a global filtering of mobile Internet access with European GSM Operators, in the absence of an identified problem and, in the three years since the agreement was reached, any assessment of its impact;

- Agreeing on a text in the EU/Korea Free Trade Agreement which risks removing core aspects of ISP liability safe harbours, increasing the liklihood of ISPs feeling the need to take pre-emptive punitive measures against consumers suspected of illegal activity;

- Financially supporting an initiative to block funding to websites accused of illegal activity (the model used by Mastercard to block funding to Wikileaks and by Visa to block funding to websites accused of facilitating copyright infringement).

In addition, there are other projects elsewhere in the world and globally, such as the US-led "trans-pacific partnership" and the OECD project on the role of ISPs in achieving public policy objectives.

In the next instalment of this series, we will look at some case studies of existing privatised enforcement measures to assess the dangers of these projects.

2003 Interinstitutional Agreement:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2003:321:00...

Treaty on European Union:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0...

European Convention on Human Rights:
http://www.hri.org/docs/ECHR50.html

Charter of Fundamental Rights:
http://www.hri.org/docs/ECHR50.html

Dialogue on dissemination of illegal online content:
http://www.edri.org/edrigram/number8.15/edri-euroispa-notice-takedown-...

Filesharing project:
http://www.euractiv.com/en/infosociety/eu-secret-talks-illegal-downloa...

ACTA consolidated text:
http://www.mofa.go.jp/policy/economy/i_property/acta_consolidated_text...

Commission funding proposal:
http://ec.europa.eu/home-affairs/funding/isec/call_10132/tc2_call_2010...

IPR Enforcement Directive Communication:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC077...

Mobile blocking of allegedly illegal content:
http://ec.europa.eu/information_society/activities/sip/events/forum/fo...

OECD project on ISPs and public policy objectives:
http://www.oecd.org/dataoecd/8/59/45997042.pdf

Charter of fundamental rights:
http://www.europarl.europa.eu/charter/pdf/text_en.pdf