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Commission promises better monitoring of “self-regulation” projects

24 April, 2013

In February 2013, EDRi wrote to European Commission President José-Manuel Barroso to highlight problems with the very divergent and contradictory approaches being taken by the Commission regarding the role of intermediaries in dealing with allegedly illegal content and to support the evidence-based approach of Commissioner Barnier and DG Internal Market.

The letter was motivated by two different developments in the Commission. Firstly, we have seen a constant trickle of “self-regulatory” initiatives proposed and funded by the Commission, such as the “CEO Coalition to make the Internet a better place for kids” (child protection, led by Commissioner Kroes) and the “Clean IT Project” (terrorism, funded by Commissioner Malmström). These initiatives always have certain characteristics:

- they are never based on any specific problem analysis but the concept that “something” should be done by “someone”.
- while the Commission funds them and even sometimes initiates and directs them, the Commission accepts no responsibility for their outcomes.
- even though the Commission accepts no responsibility for the outcomes, it has no hesitation in demanding certain “voluntary” measures to be implemented by the industry – with the threat of bad publicity or legislation (or both) if its wishes are not complied with.

The other development is the “Notice and Action” initiative by DG Internal Market of the European Commission. Here, the Commission has taken the opposite approach. It invested significant manpower and resources into bilateral and multilateral meetings with the Internet industry, civil society, copyright and child protection organisations and organised a consultation (which received a record number of responses from citizens). On the basis of the evidence collected, the Commission service in charge came to the conclusion that the Commission had to take responsibility for for problems that it has identified and launch new legislation to provide greater legal certainty for all stakeholders, ensuring adequate protection for citizens' fundamental right to freedom of communication.

While EDRi has not seen the proposed Directive and accompanying documents, we felt that the Commission deserved support for this diligent, evidence-based approach and its apparent willingness to take legal responsibility for fixing the problems that it identified.

Unfortunately, with elections in May 2014 and the end of the current Commission later this year, there is a strong risk that the Commission will not have the courage of its convictions. Despite the fact that the Commission has identified restrictions of freedom of communication that have their origins in existing EU legislation, President Barroso may not feel able to show the necessary leadership to resolve the problem. Instead of legislation to fix the problem, non-binding “recommendations” will probably be the “safe” solution adopted by the Commission.

This would be a sad development, compared with the hopes for fundamental rights that marked the start of the current Commission's term of office. On 3 May 2010, when taking the oath to “respect the treaties and the Charter” President Barroso said “the oath of independence and respect for the EU Treaties is more than a symbolic act. The European Commission is a unique institution and the Commissioners have today made clear that they will uphold all the principles and values enshrined in the Treaties and the Charter of Fundamental rights". Indeed.

Commission Vice-President Viviane Reding, responsible for Fundamental Rights, responded to our letter on behalf of President Barroso. The brevity of the response shows the controversial nature of the topic within the Commission. While the most likely outcome now appears to be that the Commission will back away from its evidence-based approach, the legally dubious, evidence-free approach of “voluntary measures” is now politically a far more risky proposal than it was a few months ago.

EDRi letter (21.02.2013)

Commission response (11.04.2013)

CEO Coalition to make the Internet a better place for kids (14.03.2012)

CEO Coalition conclusions (2.02.2013)

Clean IT – Leak shows plans for large-scale, undemocratic surveillance of all communications (21.09.2012)

CleanIT looking for the question that it was seeking an answer to (21.11.2012)

ENDitorial: Clean IT is just a symptom of the pinata politics of privatised online enforcement (26.09.2012)

Clean IT

CEO Coalition

(Contribution by Joe McNamee - EDRi)



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