I was on the panel of a public debate hosted by LSE Media Policy Project on Monday 10 March 2014. The following text  is an edited version of my presentation.

My presentation  addressed the notion of  ‘freedoms’ in the event title.  The  specific topic – intermediary liability  for copyright enforcement - brings the the issue of ‘freedoms’  into sharp focus  because the proposed measures  asking ISPs and search engines to protect copyright online by blocking and removing content also present a threat to the Open Internet and potentially to free speech.  My focus  is not on  getting stuff for free, but on the potential for blocking of legitimate speech.

I began with the observation that we are seeing a step-change in copyright policy-making. The  current European Commission copyright consultation  got  11,117 responses. That’s astonishing compared with a consultation in 2006, when I first began my research, which  got just 163 responses -  over half from rights-holder lobby groups, and about a quarter from telecoms companies. The 2006 consultation  presented a picture of a political battle between two large and powerful industries – a battle that is often portrayed as Silicon Valley v Hollywood. The citizen or Internet user voice was not to be heard.  There was no discussion of rights and freedoms.

A tipping point in the politics came in 2012, with the  protests against the Anti-counterfeiting trade agreement or ACTA, which swung the vote in the European Parliament.  ( See my book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms, chapter 6). We are now seeing a three-way conflict between the two industries and concerned citizens. It’s  a three-way fight that alters the dynamics of the policy-making process and increases the senstivity of it. That’s why an understanding of rights and freedoms  is becoming important.

What is intermediary liablity? An intermediary is the Internet service provider, such as BT or Virgin;  it is the hosting platform such as YouTube, Facebook or Twitter; it is a cloud service, and arguably it is also a search engine such as Google. Liability means it has a responsibility,  and may be sanctioned or taken to court if it does not fulfil that responsibility.

However, just as there are three different protagonists in the political battle, there are three different perspectives on what is the role and liability  of an intermediary.

From the Internet perspective, an intermediary is a  neutral platform or carrier. In particular, the ISP is  a mere conduit who runs the pipes but has no involvement in selecting either the content or its destination. It merely transmits the data files from one computer to another, and hence does not believe it has any responsibility for the content.

From the copyright perspective, an intermediary is a person who allows their facilities or service to be used to infringe copyright, and hence can be asked  to do something about the infringement.

Immediately, we can see  that there is a conflict of interest between the copyright industries and the Internet industries.

From the citzen’s perspective, the intermediary stores or transmits their communications, and there is an expectation that it does not interfere. This is the point that I want to focus on. That expectation is enshrined in law in the European Convention on  Human Rights, which established a right to freedom of expression without interference. The notion of freedom ‘without interference’ is based on an age-old tradition of political thinking that goes back to the seventeenth century and  the great political thinker Thomas Hobbes.  This idea has been continued by thinkers such as John Stuart Mill and Isiah Berlin.

However, the Convention assumed that the interferer would be the State, and   could not have foreseen that interference would come from commercial entities, which is the situation we face today.

The measures that are proposed for the protection of copyright are operated by private companies. They  rely on vast automated systems that can open the packets of data in transmission. These systems  are even capable of tracking personal Internet activity through a subscriber connection to individual pieces of equipment in someone’s home.

These systems are not always able to distinguish between content that unlawful because it infringes copyright and content that is lawful. For example, they cannot distinguish the legal uses of copyright content under fair dealing rules or any other exception to copyright. An recent example was the case of   Lawrence Lessig’s video which was  subject to an invalid, automated  takedown notice from a music company.  This would therefore be an example of interference. The kind of mass scale takedowns that are happening currently arguably  increase the risk  of this kind of automated error.

Automated systems  on ISP networks are also prone  to blocking legitimate content. An example occurred last year in the UK,  when the Premier League got a court order to block a football streaming site. The Radio Times also found itself blocked. The Radio Times is legitimate content, hence this would count as interference.

There is case law to suggest that over-blocking presents an infringement of free speech rights, notably in the case of Scarlet Extended in the European Court of Justice.  The ECJ is concerned about the possibility for a filtering system to block lawful content, because it cannot properly distinguish between lawful and unlawful content. Exactly the argument I am making here.

 EU law says is that Internet service providers may not be given  a ‘general obligation to monitor’.  What does that mean?  The problem, of  course, is how to interpret it and the ECJ has provided some helpful guidance. It has said that  “Preventive monitoring, which would require active observation of all Internet activity on an unlimited basis to identify and filter out the alleged infringing content” is  incompatible with EU law. Judges in Britain and elsewhere, have reflected this position and  are agreeing to orders for ‘narrowly scoped’ monitoring of specific urls, but generally stop short of any wide-ranging monitoring.

However, that is is ISPs. What is the position for Google? Under EU law, could  Google could ever be given a general obligation to monitor? My understanding from discussions with lawyers,  is that it could not.

 In other words, when we are considering demands for policing of content by ISPsand search engines, a wide-ranging obligation  is unlikely to be compliant with EU law. If we assume that this is a red line for EU policy, what are the other options?  

 Here’s one possibility. The European Commission is proposing a new directive on notice-and-action. This  will be an EU version of the American DMCA.  Could they build in some form  due process? Because in the context of a privatised, heavily automated  Internet policing regime that could put legitimate speech at risk, it could be important to have some kind of judicial or regulatory oversight. In other words,  the disputed liability should be determined by the courts and not by private negotiation.

The other two panelists were Geoff Taylor, CEO of The British Recorded Music Industry (BPI);  and Nicholas Lansman is founder and CEO of Political Intelligence, a Europe-wide political communications firm; and founder of EuroISPA – the European Internet trade association which represents the internet sector at EU-level in Brussels. A write up of Nicholas Lansman's presentation is posted here.

The chair was Anne Barron, Associate Professor, LSE Law. 

The event was hosted by LSE Media Policy Project

If you are more interested in how the issue of copyright enforcement, intermediary liability and Internet freedoms,   then you may also like my  book   A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013,   LSE public debate - Copyright and Freedoms in a Digital Europe: Liability of Intermediaries - my speech,   in Iptegrity.com  16 March 2014. Commercial users - please contact me.

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