“Let’s not have democracy anymore, let’s have internet companies”

© Unsplash/Priscilla Du Preez

Tick… Tock… Tick… Tock… While reading these four words, millions of new data online was uploaded, shared, commented and seen in the online sphere. The internet is growing bigger each second. But who controls the illegality of the content in Europe?

“What is illegal offline is also illegal online,” writes the European Commission in their new Communication about ‘Tackling Illegal Content Online’. There is not much to disagree about, but beneath the surface the enforcement stands on feet of clay.

According to Kaja Kallas, MEP in the European Parliament (Reform/ALDE), the situation now resembles a port. Each container goes through the port before it reaches the receiver and brings thousands of new products. “A port is not responsible for all the illegal products that might go through the port,” Kallas says. But when the authorities find something, the port has to cooperate and take action. Illegal content online follows the same principle: The so-called “Notice-and-Takedown” procedure forces online platforms to remove illegal content after they are aware of it.

Removing is the tip of the iceberg

“There is a very strong theme running through the Commission’s work where they are constantly talking about removing illegal content,” says Joe McNamee, Executive Director at EDRi (European Digital Rights), an association of civil and human rights organisations in Europe. “The availability of the content is part of a bigger problem. Removing content is important, but removing content is addressing the tip of the iceberg.”

He explains it with the example of child abuse material, which is forbidden online in all EU member states: There is a victim, there is a criminal who made the content and several other criminals that access the content. “If you remove visibility of a problem, there is less of a political or a societal pressure and there is less evidence that the rest of the problem is being dealt with,” says McNamee. But that exactly is what the Commission outlines – Online platforms have a central role in society and therefore a societal responsibility which they should enforce through the removal.

The European Commission sees the responsibility for the removal of illegal content at the online platforms. © European Union, 2016

“A cynical triangle of interests”

McNamee agrees that illegal content should be removed, but nobody checks the illegality in the end. “Illegality plus other stuff is banned by the Terms of Service. If they have to check reports against the Terms of Service and community guidelines, when would it ever be necessary to subsequently check to see if those are legal?” McNamee asks. “This creates a very cynical triangle of interests.”

The internet companies are happy – because they dealt with the problem. The states are happy, because they don’t have to deal with the problem. Finally, the person that uploaded illegal content is also happy, since he or she is just accused of breaching the Terms of Services and not because of doing something illegal. Éva Simon, Advocacy Officer at the Civil Liberties Union for Europe, gives the example of nudity. The Terms of Service of Facebook include the prohibition of nudity – even when it is not illegal by law.

Several directives, conventions and rulings have made it through the EU institutions. It is comparable to a jungle with different documents, information and guidelines. But the success might not always have been on the side of the EU. “The 28 member states have implemented the legislation into their national laws differently and some of them don’t enforce it,” says McNamee. The outcome he explains as follows: After this chaotic situation, it is easy for the Commission to decide to put the burden on internet companies. “They can legislate through the Terms of Services, they can enforce through the implementation of terms of service. Let’s not have laws, let’s not have democracy anymore, let’s have internet companies.”

“We don’t want to become the judging jury

“As platforms we don’t want to become the judging jury,” says Siada El Ramly, Executive Director at EDiMA, representing internet platforms in the European Union. “That isn’t our role as platforms to deem content illegal. We need to get that guidance either through member states legislation or guidance from the EU. And then we take the action accordingly.”

According to El Ramly the internet platforms have always been frontrunners when it comes to tackling illegal content online. “The speed of developments online is so much faster than legislation can actually keep up with,” the expert says. The online platforms are engaged, both on a self-regulatory level but also co-regulation plays a role in their daily business. “It’s a pragmatic approach that addresses the issue in a timely manner,” El Ramly says.

According to El Ramly, the internet platforms have always been frontrunners when it comes to tackling illegal content online. © Flickr/Jason Howie

Differentiation is missing

One of the biggest problems for the providers is the definition of illegality. “I think what we see in regards of the communication is that it is trying to tackle this whole issue of illegal content, but there are so many different forms of illegal content,” El Ramly explains.

This key concern about the differentiation also troubles Simon. “Illegal content is a much broader content type,” she explains. “There is a really important distinction between the different kinds of illegal content and what we do against those contents.” Like El Ramly Simon points out that different content types should always be treated differently. “The EU has moved into a direction where the approach is occurring from the wrong angle.”

The Commission considers illegal content as something that should be removed immediately, Simon explains. She agrees that serious illegal contents as child pornography or hate speech should be removed quickly to protect citizens. But illegal content is more than serious hate speech or incitement to violence – it is also copyright infringement or libel and defamation. Simon shares the same concerns with many civil liberties groups: “The problem with this is, on one hand there is freedom of information on the other hand there are illegal contents and there is a need to balance between these two rights,” Simon says. “These are very important fundamental rights issues.”

Better safe than sorry

McNamee emphasizes that online platforms are still private companies. “We have to recognize that internet companies are private companies and they will act like private companies,” the expert says. In conclusion that would mean: Better safe than sorry. The Commission’s Communication ended with a possible legislation next year, when internet companies don’t react as outlined in the new guidelines. “If in May we come out with legislation which changes their incentives that makes it more necessary to delete more content more quickly then they will harmonize up to a level that will keep them safe in all countries,” fears McNamee. “But if we delete all that content we are not happy with, then we kill freedom of speech, then we kill public debate,” Simon says.

“If it is so that the platform is really liable for everything, what my fear is that we give away the control who says what is right and wrong,” says Kaja Kallas. If there would be doubt about a certain post or video, it would be prohibited from uploading. “And this I feel is actually going against what the free internet is all about,” Kallas concludes. Simon goes further and says that the EU should not trust internet companies. “We should be really cautions to not limit freedom of expression, which is part of democracy. Without freedom of speech there wouldn’t be any working democracy,” she emphasizes.

El Ramly sees the complexity in the removal of illegal content. “You don’t have a definition at EU level that could clearly stipulate these are the different criteria on which you have a checklist of what is legal,” she says. For her it is important, that the European Union takes more time to examine the complexity and to make sure that the differentiation between different kinds of contents as well as different kinds of processes takes place.

The cultural playing field

Other than the procedural side, El Ramly does not see anything which could be harmonized on EU level. “We have got culturally extremely divergent geography and that is a value of the EU and definitely one that we should maintain,” she says. Also Kallas sees the problem of harmonizing definitions and laws at EU level, since the cultural differences are still too big. Even human rights are still not on common ground in the Union. According to Simon “free speech differs in different member states as well as libel and defamation.”

“What is illegal offline, is also illegal online” might make sense in a broader picture, but since it raises questions on the limitation of fundamental human rights, one might ask if the content blameless citizen and user could be removed. Can we think of an environment in the European Union where freedom of speech is limited? “The thing is, that people don’t have the means against these big companies,” Simon says. The average user will not fight against Google, Facebook or Amazon. Still, everyone agrees, an independent court should decide on each case if freedom of speech was limited by removing content.

Everyone agrees that an independent court should decide on each case what counts as illegal and what is still in the legal area. © Flickr/iadMedia/Keila Trejo

Since removing is still the tip of the iceberg, problems about illegality have to be dealt in another way. “It is much more likely that we have public debate over certain issues, that we really focus on public education, that we really educate our kids to use internet and media properly,” Simon says. El Ramly sees the importance in awareness-raising. “Piracy is a good example, where a lot of effort has been put into the education of the users and it’s picked up,” she points out.

Defending human rights versus legislation

New legislation, like the Commission announced, might in comparison not be the best-practice solution. “Obviously the companies would err on the side of caution to make sure that they are complying with everything that has been required,” El Ramly says. For the user it means one thing: It is and stays complicated. “I am an opposition politician in my country, of course I criticize the government and sometimes with really harsh words,” Kallas says. If this right is taken away from her, she fears authoritarian results. “You need to have people in a position of power actually defending freedom of speech,” McNamee emphasizes.

In the end today, it is still the companies that decide over the line between fundamental rights and illegal content in a very blurry, chaotic field of rules and legislation. “Our concern is that we are being pushed into a position where we will become the arbiters and that’s not a position we’d like to be in,” El Ramly says. Who controls the online sphere? It seems that today it is not a legal, independent authority.

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