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January 15 2014

Civil Society Calls on the ECHR's Grand Chamber to Overturn Delfi v. Estonia Ruling

Paris, 15 January 2014 — Last October, the European Court of Human Rights issued a ruling against an Estonian news portal (“Delfi”), making the platform liable for defamatory comments posted by third users. This ruling threatens to encourage privatised censorship and to severely undermine public debate online. From a legal perspective, as NGO Article 19 wrote at the time, “this judgment displays a profound failure to understand the EU legal framework regulating intermediary liability. In addition, it conveniently ignores relevant international standards in the area of freedom of expression on the Internet”. Many organizations and companies all across Europe have sent the following letter to the ECHR's president to support Delfi's appeal to the Court's “Grand Chamber”, which still has the power to overturn this dangerous ruling.

To:
Dean Spielmann
President ofEuropean Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
France

13 January 2014

Re: Grand Chamber referral in Delfi v. Estonia (Application no. 64569/09)

Dear President Spielmann and members of the panel:

We, the undersigned 69 media organisations, internet companies, human rights groups and academic institutions write to support the referral request that we understand has been submitted in the case of Delfi v. Estonia (Application No. 64569/09). Signatories to this letter include some of the largest global news organisations and internet companies including Google, Forbes, News Corp, Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers and Conde Nast; prominent European media companies and associations including the European Newspaper Publishers’ Association, Sanoma Media Netherlands B.V. and the European Publishers Council; national media outlets and journalists associations from across the continent; and advocacy groups including Index on Censorship, Greenpeace, the Center for Democracy and Technology and ARTICLE 19.

We understand that the applicant in the above-referenced case has requested that the chamber judgment of 10 October 2013 be referred to the Grand Chamber of the Court for reconsideration. We are writing to endorse Delfi’s request for a referral due to our shared concern that the chamber judgment, if it stands, would have serious adverse repercussions for freedom of expression and democratic openness in the digital era. In terms of Article 43 (2) of the Convention, we believe that liability for user-generated content on the Internet constitutes both a serious question affecting the interpretation or application of Article 10 of the Convention in the online environment and a serious issue of general importance.

The case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

We find the chamber’s arguments and conclusions deeply problematic for the following reasons.

First, the chamber judgment failed to clarify and address the nature of the duty imposed on websites carrying user-generated content: what are they to do to avoid civil and potentially criminal liability in such cases? The inevitable implication of the chamber ruling is that it is consistent with Article 10 to impose some form of strict liability on online publications for all third-party content they may carry. This would translate, in effect, into a duty to prevent the posting, for any period of time, of any user-generated content that may be defamatory.

Such a duty would place a very significant burden on most online news and comment operations – from major commercial outlets to small local newspapers, NGO websites and individual bloggers – and would be bound to produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble. The Delfi chamber appears not to have properly considered the implications for user comments, which on balance tend to enrich and democratize online debates, as part of the ‘public sphere’.

Such an approach is at odds with this Court’s recent jurisprudence, which has recognized that “[i]n light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”1 Likewise, in Ahmet Yildirim v. Turkey, the Second Section of the Court emphasised that “the Internet has now become one of the principal means of exercising the right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest”2.

Secondly, the chamber ruling is inconsistent with Council of Europe standards as well as the letter and spirit of European Union law. In a widely cited 2003 Declaration, the Committee of Ministers of the Council of Europe urged member states to adopt the following policy:

“In cases where … service providers … store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware … of their illegal nature.

When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.”3

The same position was essentially adopted by the European Union through the Electronic Commerce Directive of 2000. Under the Directive, member states cannot impose on intermediaries a general duty to monitor the legality of third-party communications; they can only be held liable if they fail to act “expeditiously” upon obtaining “actual knowledge” of any illegality. This approach is considered a crucial guarantee for freedom of expression since it tends to promote self-regulation, minimizes the need for private censorship, and prevents overbroad monitoring and filtering of user content that tends to have a chilling effect on online public debate.

Thirdly, it follows from the above that the Delfi chamber did not thoroughly assess whether the decisions of the Estonian authorities were “prescribed by law” within the meaning of Article 10 § 2. Under the E-Commerce Directive and relevant judgments of the Court of Justice of the European Union (CJEU), it was not unreasonable for Delfi to believe that it would be protected by the “safe harbour” provisions of EU law in circumstances such as those of the current case4. The chamber ruling sets the Court on a potential course of collision with the case law of the CJEU and may also give rise to a conflict under Article 53 of the Convention.

Finally, the chamber ruling is also at odds with emerging practice in the member states, which are seeking innovative solutions to the unique complexities of the Internet. In the UK, for example, the new defamation reforms for England and Wales contain a number of regulations applicable specifically to defamation through the Internet, including with respect to anonymous third-party comments. Simply applying traditional rules of editorial responsibility is not the answer to the new challenges of the digital era. For similar reasons, related among others to the application of binding EU law, a recent Northern Ireland High Court judgment expressly chose not to follow the Delfi chamber ruling5.

For all these reasons, we strongly urge the Court to accept the applicant’s request for a referral that would allow the Grand Chamber to reconsider these issues, taking into account the points raised by the signatories in this letter. There is no question in our minds that the current case raises “a serious question affecting the interpretation” of Article 10 of the Convention as well as “a serious issue of general importance” (Art. 43).

Sincerely,

  • Algemene Vereniging van Beroepsjournalisten in België
  • American Society of News Editors
  • ARTICLE 19
  • Association of American Publishers, Inc
  • Association of European Journalists
  • Bloomberg
  • bvba Les Journaux Francophones Belges
  • Center for Democracy and Technology
  • Conde Nast International Ltd.
  • Daily Beast Company, LLC
  • Digital First Media, LLC
  • Digital Media Law Project, Berkman Center for Internet & Society – Harvard University
  • Digital Rights Ireland
  • Dow Jones
  • Electronic Frontier Finland
  • Estonian Newspapers Assocation (Eesti Ajalehtede Liit)
  • EURALO (ICANN’s European At-Large Organization)
  • European Digital Rights (EDRi)
  • European Information Society Institute (EISi)
  • European Magazine Media Association
  • European Media Platform
  • European Newspaper Publishers’ Association (ENPA)
  • European Publishers Council
  • Federatie van periodieke pers, the Ppress
  • Forbes
  • Global Voices Advocacy
  • Google, Inc.
  • Greenpeace
  • Guardian News & Media Limited
  • Human Rights Center, Ghent University
  • Hungarian Civil Liberties Union
  • iMinds-KU Leuven, Interdisciplinary Centre for Law and ICT
  • Index on Censorship
  • International Press Institute
  • Internet Democracy Project
  • La Quadrature du Net
  • Lithuanian Online Media Association
  • Mass Media Defence Center
  • Media Foundation Leipzig
  • Media Law Resource Center
  • Media Legal Defence Initiative
  • National Press Photographers Association
  • National Public Radio
  • Nederlands Genootschap van Hoofdredacteuren
  • Nederlands Uitgeversverbond (NUV)
  • Nederlandse Vereniging van Journalisten
  • Net Users’ Rights Protection Association
  • News Corp.
  • Newspaper Association of America
  • North Jersey Media Group, Inc
  • NRC Handelsblad
  • Online News Association
  • Open Media Coalition – Italy
  • Open Rights Group
  • Panoptykon
  • PEN International
  • PEN-Vlaanderen
  • Persvrijheidsfonds
  • Raad voor de Journalistiek
  • Radio Television Digital News Association
  • Raycom Media, Inc.
  • Reporters Committee for Freedom of the Press
  • Sanoma Media Netherlands B.V.
  • Telegraaf Media Groep NV
  • The New York Times Company
  • Thomson Reuters
  • Vlaamse Nieuwsmedia
  • Vlaamse Vereniging van Journalisten
  • Vrijschrift
  • World Association of Newspapers and News Publishers
  • 1. Times Newspapers Ltd v. the United Kingdom (Nos. 1 and 2), Judgment of 10 March 2009, para. 27. See also Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of 5 May 2011.
  • 2. Judgment of 18 December 2012, para. 54.
  • 3. Declaration on freedom of communication on the Internet, 28 May 2003, adopted at the 840th meeting of the Ministers’ Deputies.
  • 4. The CJEU has ruled, with reference inter alia to Article 10 ECHR, that an Internet service provider cannot be required to install a system filtering (scanning) all electronic communication passing through its services as this would amount to a preventive measure and a disproportionate interference with its users’ freedom of expression and information. See Scarlet v. Sabam, Case C-70/10, Judgment of 24 November 2011; and Netlog v. Sabam, Case C-360/10, Judgment of 16 February 2012.
  • 5. J19 & Anor v Facebook Ireland [2013] NIQB 113 (15 November 2013), at http://www.bailii.org/nie/cases/NIHC/QB/2013/113.html.

December 10 2013

Will Our Parliamentarians Consent to a Democratorship?

Numerous reactions are now being voiced against the inclusion in the 2014-2019 Defense Bill of article 13 whose provisions enable a pervasive surveillance of online data and communications. Gilles Babinet, appointed in 2012 as French Digital Champion to Nellie Kroes, Vice-President of the European Commission responsible for the Digital Agenda for Europe, was quoted [fr] in the French newspaper Les Echos, “This law is the most serious attack on democracy since the special tribunals during the Algerian War” (our translation).

This statement comes after the public declaration [fr] by the Association of Community-based Internet Services (ASIC), the press release by La Quadrature du Net and the opinion of the Conseil National du Numérique [fr] (The French Digital Council) which calls on the suppression of article 13.

News articles in the press refer to the extensive attack on freedom and fundamental rights that the adoption of this article would represent. Such criticism is still building up. But time is running out because the government is using cynically the urgency of adopting the Defense Bill in order to push the article 13 through Parliament. If, on this Tuesday, 10 December, the French Senate adopts the text unchanged compared to the one adopted on first reading on 4 December by the National Assembly, then only the government would be allowed to present an amendment to withdraw article 13 in the National Assembly. If government does not backtrack, then to rescue our fundamental rights, the National Assembly would be left with the only option to reject the bill in its entirety and face the consequences that such a full rejection would entail.

It is evident that faced with a bill that threatens our fundamental rights, every parliamentarian must take their decision on the basis of their own personal choice and ethics. There is no hiding behind party affiliation that could limit their ability to vote according to their personal conscience on this matter.

Summary of the measures included in article 13

  • Article 13 renders permanent a provisional measure introduced in the anti-terrorism legislation of 2006, extended in 2008 and 2012, and valid until 31 December 2015 (there was no urgent security need to legislate it). Not only will it be made permanent, its nature and scope are also significantly extended.
  • Before, the authorities were allowed to collect connection data. Now authorities may request the live capturing of data and digital documents from both Internet Service Providers and hosting services.
  • The type of information that may be captured and requested would include all data and documents treated or saved by these entities' networks or services.
  • The agencies that are allowed to request this type of information would be extended beyond those directly concerned with National Defense and Security to include, for instance, the Department of Economy and Finance.
  • The goals of the surveillance will be extended to include any information related to scientific and economic potential of France, or the fight against criminality.
  • Finally, not only will the judiciary be simply bypassed, but the only measure of control, let to the National Commission of Control of Electronic Surveillance, will only be to emit a (secret) "recommendation" to the Prime Minister, a process that carries with it no weight whatsoever.

This piece was initially published [fr] on the blog of Philippe Aigrain, founding member of La Quadrature du Net.

December 04 2013

A Move Towards Generalised Internet Surveillance in France?

Paris, 3 December 2013 — Yesterday the 2014-2019 defense bill passed first reading in the French National Assembly. It marks a strong shift towards total online surveillance. If passed, the bill will not only allow live monitoring of everyone's personal and private data but also do so without judicial oversight, as the surveillance will be enabled through administrative request. The bill also turns permanent measures that were only temporary.

How is it possible that after only a few months of Edward Snowden's revelations the French government proposes a bill so detrimental to our fundamental rights? Article 13 of the bill organises the generalisation of live surveillance of "information and documents processed and stored in the networks", which potentially concerns the data of all citizens. Such surveillance requests can be issued by a wide variety of departments, including the departments of Internal Security and Defense, but also the department of Economy and Finance. The inclusion of such departments exceeds what is required to meet the stated aim of protecting the citizen against incidents of an exceptional seriousness. Indeed, the proposed bill permits these departments to authorise live surveillance of all citizens with the sole stated aim to “prevent […] crime” or the particularly vague “safeguard of essential components of scientific and economic potential of France”.

Data collection will not only be done directly via companies providing Internet access (ISPs and telecommunication operators) but also via web hosting operators and online service providers. Despite the gravity and magnitude of this collection, no measure significantly limits their volume. The data collection could be done by installing devices that capture signals and data directly at the operators and hosting companies. The definition of these operators and companies, taken from 2004 Loi pour la confiance dans l'économie numérique (“Act for Trust in the Digital Economy”), cause concerns that the scope of application will be very wide.

“Considering the recently uncovered evidence of massive and generalised spying on citizens, the maneuvers of the President and of the government deceive no one. This bill sets up a generalised surveillance regime and risks to destroy once and for all the limited trust between citizens and agencies responsible for security. A vague reference to the needs of the security agencies does not justify such serious infringements to our basic liberty. La Quadrature du Net calls on parliamentarians to reject this infringement to basic rights during the second reading of the text” concludes Philippe Aigrain, cofounder of La Quadrature du Net.

September 04 2012

Make Your Voice Heard Against a "Clean Internet"

Paris, Sept. 4th 2012 - The European Commission is holding a consultation -ending on the 5th 11th of September- about "A clean and open Internet". Citizen input is critically needed to ensure that freedom of expression is protected, against the attempts of many lobbies to impose draconian repressive procedures to censor online content.


Behind this worrying vocable is a biased (and boring) online questionnaire aiming at collecting opinions about the application of the "online service" directive. In particular, the consultation relates to the procedure that hosting and other service providers should follow for preventing access to online content.

This "notice and takedown" procedure is regularly abused, especially by the copyright industries who would like to see it extended as a "notice and staydown", in which operators would have to take radical or preventive measures (like blocking of access to content, preventive filtering of communications, etc.), with a tremendous impact on freedom of communication online. An extension of this procedure would mean that such measures could be deployed for a wide range of scenarios (copyright infingement, defamation, slander, etc.) and will lead to the generalisation of privatized monitoring and restriction of online communications, such as pushed by ACTA.

Citizens and independant hosting and service providers must answer this consultation to ensure that freedom of communication online will be protected. La Quadrature du Net invites them to answer the EU Commission in order to affirm that:

  • In political regimes abiding by the Rule of Law, only a judicial judge shall be able to determine an infraction and order sanctions with an impact on freedom of communication
  • The "notice and action" procedure must be specified and framed so that it is only used in some marginal cases
  • Users must always have the ability to "counter-notice" in order to claim their freedom of communication, and that ultimately a judicial judge has to decide whether their content is infringing.
  • Companies and individuals abusing the "notice and takedown" procedure must be exposed and punished.

La Quadrature du Net provides for this purpose a web-dossier on the "Online Service" directive, its own response to the consultation as well as an outline of the procedure it recommends.

Submit your own response to the "Clean Internet" consultation.

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