Yesterday we reported that EFF and the other civil society members of the Civil Society Information Society Advisory Committee to the Organization for Economic Co-operation and Development (CSISAC) had declined to endorse a draft Communique on Internet policy-making principles produced by the OECD. Since then, the OECD and key government representatives reopened negotiations with civil society, business and the technical industry stakeholders, in an effort to find mutually acceptable text to accommodate our concerns. Unfortunately that was not successful, and EFF and other members of the OECD's Civil Society Information Society Advisory Council have declined to endorse the full and final version of the Communiqué released on 29 June.
EFF and CSISAC are committed to continuing to participate in the OECD's multistakeholder policy development process. EFF has been actively involved in providing input into OECD's policy work through CSISAC for the last two years. We believe that OECD is a vital place for civil society to work and appreciate the genuine commitment of all involved in creating the Communique to engage with civil society and listen to our perspectives and concerns. EFF was involved in CSISAC's negotiation efforts over the last few weeks to find mutually acceptable text for the Communique's principles. We, along with all the other parties involved, participated in these discussions in good faith. Given that, EFF's decision not to endorse the final principles was not taken lightly.
We agree with much that is in the Communique. We support policies for fostering the open Internet, individual empowerment, evidence-based policy-making, and the commitment to multistakeholder policy development. However, we are troubled by the detailed framing of many of the principles, which are not compatible with several core CSISAC values, including respect for fundamental human rights and freedoms and the rule of law, and promotion of access to knowledge.
In our view, the Communiqué over-emphasizes protection and enforcement of intellectual property rights at the expense of fundamental rights and freedoms. At the same time, it fails to acknowledge the importance of balanced IP regimes –- including robust limitations like fair use -- to spur innovation. For EFF, the key concern was that the Communiqué could allow governments to use Internet intermediaries to police their networks and platforms for potential intellectual property infringement, which would impede citizens' access to information and freedom of expression.
The Communiqué envisages that Internet intermediaries will take voluntary measures to address and deter intellectual property infringement. These could include filtering or blocking of web content, or disconnection of Internet users upon a repeat allegation of copyright infringement under a Three Strikes or Graduated Response policy. The Communiqué provides: "Sound Internet policy should encompass norms of responsibility that enable private sector voluntary co-operation for the protection of intellectual property. Appropriate measures include lawful steps to address and deter infringement, and accord full respect to user and stakeholder rights and fair process." Why would they do this? In order to limit their liability. While the Communique recognizes the need for limitations on Internet intermediary liability, that could be read as being conditioned on intermediaries taking particular actions. The Communique provides: "Limitations play an important role in promoting innovation and creativity, the free flow of information, and in providing the incentives for co-operation between stakeholders. Within this context governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content, while minimising burdens on intermediaries and ensuring legal certainty for them, respecting fair process, and more generally employing the principles identified in this document."
Various references throughout the text to "access to lawful content" would also require Internet intermediaries to make determinations about the lawfulness of online content, even though Internet intermediaries are neither competent to do this, nor the appropriate party to do so. Taken together, this could be read as a subtle effort to reopen or at least re-interpret one of the foundational principles that has allowed the Internet to flourish -- limitations on liability of Internet intermediaries who are "mere conduits" in facilitating Internet communications. This would be at odds with the protection against unbounded liability currently afforded to "mere conduit" Internet intermediaries in US and EU law.
And perhaps most troubling of all, this is taking place in a high-level intergovernmentally-agreed document at a time when there is vigorous ongoing debate in international, regional, and national fora about the appropriate role and responsibilities of Internet intermediaries and the scope of protection against liability afforded to intermediaries in various countries' laws.
"Because of the impact that Internet intermediaries can have over their users' freedom of expression online, how countries approach these issues really will determine the future of the single global Internet" noted EFF International IP Director Gwen Hinze. "Any changes to the conditions governing limitations on Internet intermediary liability will have a significant and detrimental impact on Internet users' ability to seek, receive and impart information, and could harm the Internet's end-to-end architecture."
The international context in which this is all taking place is also significant. In his recent landmark report, the U.N. Special Rapporteur on Freedom of Expression and Opinion online recommended that censorship measures such as blocking or filtering content should never be delegated to private entities - and that no one should be held liable for content on the Internet which they did not author.
"At the international level, we are watching a lack of policy coherence among countries who are endorsing contradictory Internet governance principles in different international venues including at the Council of Europe, the OECD, the recent G8, and as proposed by European Commissioner Neelie Kroes recently." says EFF International Rights Director Katitza Rodriguez. "Any principles adopted should ensure the protection of international human rights standards that seek to protect freedom of expression and association on the Internet, as well as the rule of law – rather than supporting overbroad copyright enforcement measures that violate international human rights standards."