EU Commission: Will Kroes’ Digital Agenda endanger freedoms?

Paris, May 17th 2010 – On Tuesday May 18th, the Commission’s Digital Agenda will be released. This important document will define the European Union’s future policies on the Internet and other communications technologies. A leaked draft showed that major policy orientations remained to be arbitrated in advance of the release. Although much of the document puts forward very sensible and positive proposals, potential mentions of dogmatic copyright enforcement and Internet filtering could be sneaked in the final document at the last minute. Will the rights and freedoms of EU citizens be protected?

Open Standards

As underlined by analysts who compared the text with an earlier draft, the reference to “open standards” has been deleted. Open standards play a core role in enabling innovation, free competition and users’ freedom on the Internet and the digital environment as it ensures that new technologies will remain accessible to all parties.

The removal of openness in the Digital Agenda would be a clear indication of a dangerous influence of the lobbies of proprietary software manufacturers on the Commission. Considering that the Commission previously issued a demanding definition of open standards, the deletion of a reference to such a definition will amount to an endorsement of proprietary lock-in of users, with disastrous consequences for innovation and competition on the Internet.

Copyright enforcement

The draft also contains references to repressive schemes aimed at tackling file-sharing, which are being considered as an integral part of the agenda. The following wording appears in brackets in the document, meaning that the Commission is considering making them part of the final Digital Agenda:

[At the same time, in order to encourage the creative industries to offer more content on-line, we need to enhance the protection against online violations of intellectual property rights.]

The Commission will (…) [reinforce the protection against commercial scale online violations of intellectual property rights by a review of the Directive on the enforcement of intellectual property rights in 2011 consistently with the guarantees provided in the Telecoms Framework and fundamental rights on data protection and privacy.]

However, as pointed out by La Quadrature last fall, the Telecoms Package lacks important guarantees regarding citizens’ fundamental rights. In particular, it does not prevent Internet access providers or Internet service providers to make deals with rights holders in order to implement “three-strikes” schemes or content filtering. This ACTA-style repressive strategy is favored by some of the Commission’s services to prevent people from freely sharing cultural works over the network, by way of contracts.

The mention of “commercial scale” is also extremely dangerous since this term can be broadly interpreted to include not-for-profit activities between individuals such as file-sharing¹Such a wording would also contradict the Parliament’s recognition that “sanctions, as one of the possible tools in the field of copyright enforcement, should be targeted at commercial exploiters before individual citizens, as a point of principle”, as provided by the Del Castillo report on the Digital Agenda adopted on May 5th. http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A7-2010-0066&language=EN. Rather, in order to preserve the proportionality of sanctions, copyright enforcement should only tackle wilful for-profit infringements.

If the Commission were to keep this reference to repressive policies to deter the circulation of culture and knowledge over the Internet, it would take the risk of undermining the open nature of the Internet and infringing on people’s fundamental right to free expression and communication. Instead, EU copyright must adapt to the new state of things. Innovative funding schemes and regulations can be put in place to organize the creative economy around the social practices enabled by new technologies while better rewarding authors and artists.

Cybercrime

In the last few days, rumors have suggested that Home Affairs Commissioner Cecilia Malmström was now pushing for Internet blocking and filtering to be included in the Digital Agenda as one way to tackle cybercrime.

Commissioner Malmström has already made a proposal for blocking measures to be established at the EU level in the fight against child pornography. If the objective of protecting children from any kind of abuse or violence is of course praiseworthy, Internet blocking and filtering, while ineffective, raises serious concerns regarding freedom of expression and due process. First, such measures are conducive to “collateral censorship” through the over-blocking of perfectly legal content. They are also ineffective because they can be easily circumvented by people and criminal organizations exploiting child pornographic content. Lastly, Internet blocking often bypasses judicial authorities and thereby fails to ensure that such sanctions are proportionate and respectful of the fundamental right to freedom of expression.

So far, the draft Digital Agenda stays clear of references to such a dangerous and inappropriate way of tackling cybercrime. Instead of relying on blocking, the document rightly aims to foster cooperation between the relevant government entities in charges of tracking down criminal organizations on the Internet:

Measures to fight cybercrime do exist : to tackle sexual exploitation and child pornography, alert platforms can be put in place at national and EU levels, alongside educational activities and awareness raising campaigns.
(…)

The Commission will (…)
– present measures by 2013, including legislative initiatives, to combat cyber attacks, and rules on jurisdiction on cyberspace at European and international levels (…);
– assist Member States and Europol to create a European cybercrime center (…);
establish a European cybercrime alert platform and promote cybercrime investigation training at European level by 2012 (…);

Nelly Kroes’ directorate should ultimately refuse to include blocking and filtering as a mean to fight online criminality in the Digital Agenda. The open nature of the Internet should not be a pretext to disrespect the rule of Law and to establish schemes paving the way to censorhip. Such a policy decision would run counter to the democratic ideals of the European Union.

There are just a few hours left before Europe’s Digital Agenda is officially announced. It is a major initiative that will provide a framework for the future of Internet-related policies. During this final stage, Mrs Kroes’ cabinet will probably be under the pressure of lobbies calling for dangerous policies. But the Commission and other European institutions must ensure that the fantastic contribution of the Internet to our open and democratic societies is guaranteed. The Digital Agenda must ensure that fundamental freedoms will be resolutely protected. EU citizens can contact Mrs Kroes’ cabinet to express their wish to see Europe’s Digital Agenda abide by the public interest and the rule of Law.