The freedom on the Internet is increasingly at risk, as the following three recent examples demonstrate: the on-going secret negotiations on the ACTA agreement, the conviction of three Google executives by an Italian prosecutor and the new approach of Google to China.
Hence, following the digital platform debate hosted by the European Parliament on 24 March 2010 and far from entering into the merit of the specific cases, they will be used as a useful starting point to make some reflections concerning the principle of freedom on the internet as a fundamental aspect to fulfil the more general right to freedom of expression. Firstly, the principle of liability will be investigated, then the ‘commercial purpose’ criterion followed by an overview of some of the sanctions under scrutiny to limit Internet access will be illustrated.
The liability principle
The principle of liability is fundamental to understand what is stake when dealing with measures limiting the freedom on the Internet, hence it is necessary to understand what it means.
Such a principle may have a strict application (strict liability system) or a lighter application (with-fault liability system) and can be applied to individuals and companies having a direct relation with the content of material (being copyrighted, harmful, private or defamatory) as well as to intermediaries, such as Internet Service Providers (ISP). This analysis will mainly focus on the latter, although it will also refer to the former when exploring the ‘commercial purpose’ criterion.
A strict liability system foresees the possibility to held responsible an ISP regardless of its knowledge and control over the material that is disseminated through its facilities. This system may be indirectly established by imposing, an obligation to monitor all the material that is posted on the Internet by private actors.
On the contrary, a with-fault liability system foresees that an ISP is held responsible only if it intentionally violates the rights of others, either by knowing that there is some material on the Internet that violates someone’s rights or if it has certain hints on the existence of certain material infringing someone’s rights.
At the European level, the relevant provision is Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), which in articles 12 -15 does not establish a general liability regime applicable to ISPs. Instead, it provides for a system of specific liability exemptions.
This means that in cases where the ISPs provide a specific service (mere conduit, caching, and hosting) and comply with a series of requirements, they will not be held liable for the services performed. The limitations apply only to liability for damages because the last paragraphs of Articles 12, 13, and 14 of the Directive establish that Member States retain the right to require the ISPs to terminate or prevent known infringements.
Following the conviction of three Google executives by an Italian prosecutor, questions were raised on whether IPSs can be considered liable over the content distributed by users even when they are not aware of the existence of such material.
In this regard, Mark Rotenberg rightly pointed out that a distinction should be made between responsibility over the content and ways to make profit out of displayed material.
Hence, although ISPs are not responsible over the content as such they may be considered responsible if they use it to make profit out of it.
The commercial scale criterion
This point was also discussed during the above-mentioned digital platform, namely in relation to whether and under which circumstances a physical person or legal entity (hence not limiting the analysis to ISPs) can be considered liable of infringing owners’ rights.
According to the European Data Protection Supervisor ‘s opinion on the ACTA negotiations “(…) the ‘commercial scale’ embodied in the IPRE Directive is a very appropriate element to set the limits of the monitoring in order to respect the principle of proportionality”. Hence, according to the EDPS, sanctions can be imposed if the alleged infringements have a commercial scale.
However, this criterion may lead to any kind of interpretation and this vagueness is not justifiable, especially when individuals may face not only civil but also criminal prosecutions and convictions.
Therefore, in case of the unfortunate approval of such an agreement, the criterion of “commercial intent”, seems more appropriate to limit the scope of the sanctions, as pointed out by Mr Zimmermann during the Digital Platform meeting on 24 March 2010.
What is more, it has not been demonstrated yet that file sharing damages the commercial interest of rights owners. As the Draft report on enhancing the enforcement of intellectual property rights in the internal market (Gallo report) points out, these assumptions based on “data concerning the scale of IPR infringements are inconsistent, incomplete, insufficient and dispersed”.
Despite these loopholes, Member states have (France) or are very close to (United Kingdom) put into place measures to suspend or block Internet to users infringing owners rights.
Also the ACTA agreement contains such an option despite the fact the European Commissioner Mr De Gucht stated that ” The ‘three-strike rule’ or graduated response systems are not compulsory in Europe. Different EU countries have different approaches, and we want to keep this flexibility, while fully respecting fundamental rights, freedoms and civil liberties. The EU does not support and will not accept that ACTA creates an obligation to disconnect people from the internet because of illegal downloads.”
Denying access to the Internet represents indeed a violation of fundamental rights, freedoms and liberties. As the Gallo report and the European Data Protection Supervisor correctly remind, these measures already exist and are provided for by Directive 2004/48/EC on the enforcement of intellectual property rights on the internal market and since from the point of view of the protection of rights their inefficacy has not been assessed they should be considered as alternative options.
In conclusion, using the words of decision n. 2009/580 (EN) of the French Constitutional Council:
“The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.”
The next round of the ACTA negotiations will take place in New Zealand on 12-16 April 2010 and their discussions on Internet, civil, customs and penal measures will be followed as closely as possible, while waiting for a real open debate with stakeholders.