EDRI-gram Nieuwsbrief - 23 februari 2011

1. Hungary amends its controversial Media Law

As a result of the concern expressed by the European Commission and following the meetings with the Commission's experts on 7 and 15 February 2011, the Hungarian authorities have decided to amend their new controversial media legislation.

The main issues of concern were related to four issues:

  1. The disproportionate application of rules on balanced information due to the lack of limiting criteria, which was considered a breach of the Audiovisual Media Services Directive (AVMS), the EU Treaty rules on the establishment and provision of services and of Article 11 of the EU Charter of Fundamental Rights concerning the fundamental freedom of expression and information. The amendment brought by the Hungarian government is that requirements regarding balanced information will be limited to broadcasting, being no longer applied for on-demand media services.
  2. The application of fines to broadcasters legally established and authorised in other Member States which could breach the “country of origin” principle established by the AVMS Directive, according to which, audiovisual media service providers are subject to the regulations in their country of origin only. The Hungarian authorities agreed to amend this by removing the ability to fine legally established broadcasters in other EU countries.
  3. The rules on registration and authorisation of media service providers which apply to on-demand media services, press products and ancillary media services could imply that they are required to register before they are allowed to provide services in Hungary and are thus subject to an authorisation scheme. These provisions could create an unjustified restriction of the Treaty rules on freedom of establishment. The amendment agreed upon clarifies that on-demand audiovisual media service providers, media product publishers and ancillary media service providers would have to register within 60 days after having begun providing their services, meaning that these providers established in Hungary and in other Member States would no longer be subject to prior authorisation by the Hungarian authorities.
  4. The law dictated that media content may not “cause offence”, even by implication, to individuals, minorities or majorities and which apply to all media content providers, including those established in other EU countries. These provisions have been limited, for all media content providers, to situations of incitement to hatred or discrimination.

“I am very pleased that the Hungarian authorities have agreed to amend their Media Law to ensure that it complies with the aspects of EU law that we have raised, including the Charter of Fundamental Rights”, stated Neelie Kroes, EC Vice-President and European Digital Agenda Commissioner who added that the European Commission will continue to closely monitor the adoption and implementation of the amendments.

However, the opponents of the Hungarian media law are still sceptical and the debate in the European Parliament on 16 February also raised issues that had not been addressed by of the Hungarian authorities, such as the political control over the country's media authority.

According to Martin Schulz EMP (Germany), the Socialists & Democrats group leader, “At first glance, a series of changes, some of technical nature have taken place. But other important matters, such as the composition of Media Council, are outstanding. (…) We still need to analyse the text carefully. Media freedom is an issue of central importance to the S&D group and we will do everything in our power to protect it.”

During the meeting of the European Parliament's group leaders (with exception of the EPP) on 17 February, the decision was taken to postpone the vote on the Hungarian media law but not withdraw a resolution on the matter.

“Whilst it is a positive sign that the Hungarian Government have indicated a willingness to modify the four areas of concern outlined by the Commission, Liberals and Democrats remain concerned about other aspects of the Hungarian law which place huge powers of censorship in the hands of governing party appointees and reveal a lack of adequate protection for journalists' sources as well as insufficient provision for judicial review or appeal,” said Renate Weber (PNL, Romania) ALDE coordinator in the Civil Liberties committee and spokesperson on the Hungarian media law who added that the Hungarian Government “should consider a more fundamental overhaul of the law in line with the recommendations of the OSCE.”

2. EESC condemns body scanners as a breach of fundamental rights

On 16 February 2011, the European Economic and Social Committee (EESC) issued its opinion on the use of body scanners in EU airports.

The EESC has opposed the eventual adoption of any measures that would introduce body scanners on an EU-wide level, and feel that the Commission Communication on the use of security scanners does not respect three basic criteria: necessity, proportionality and legality.

The document also criticises the Commission for changing the term “body scanners” to “security scanners”, and outlines four central critiques with regard to the Commission Communication, namely, proportionality, fundamental rights, health risks and passenger rights .

The document urges the Commission to produce a thorough proportionality test in order to determine the necessity of their implementation versus alternative measures. The EESC suggests that the Commission seriously consider alternatives and that it might be better to wait for more precise and less intrusive technology which can recognise security hazards.

The EESC objects to the infringement of fundamental rights as a trade-off for public security. The costs to fundamental rights are three fold: personal privacy, data privacy and the right to human dignity. To further underline the inherent risks, the document cites a case in a Florida airport where 35 000 naked scans were recorded by officers and distributed on the Internet.

As there exists no code of best practices or conclusive proof that these scanners do not pose health risks to individuals, the EESC requests that the Commission provide a thorough scientific examination proving that passengers and personnel who frequently fly will not be exposed to any health risks.

The Committee also reminded the Commission that its Communication did not include guarantees of effective recourse for passengers and personnel undergoing the scans, and also failed to include guarantees that passengers will not obliged to undergo body scanning, ensuring individuals reserve the right to 'opt out' while not suffering longer wait times, more intrusive pat-downs, or be prevented from flying.

Body scanners are currently in a trial period in the EU, where approximately 5 or 6 Member States have deployed the technology, including the UK, Finland, the Netherlands, France and Italy (according to a press release from 15 June 2010).]].

The Commission is convinced that a more harmonised approach to body scanners is needed throughout the EU, thus it is likely that an EU legal framework on the use of “security scanners” at EU airports will be produced sometime in the near future.

3. The French supreme court recognizes hosting status of Web 2.0 services

On 17 February 2011 the French Court of Cassation recognized the hosting status of Dailymotion and The court also confirmed, in relation to the Amen website case, that the judges had to verify that the content withdrawal requests observed the requirements of LCEN (loi pour la confiance dans l'économie numérique - French implementation of the EU E-commerce Directive) before condemning a hosting site that had not withdrawn promptly the notified content.

The decisions of the Court of Cassation establish clearly the boundary between a content hosting site and a web service editor. In the Dailymotion case, it comes to confirm the decision of the French Court of Appeal of May 2009 which overturned a 2007 court decision that considered the hosting site liable for the content posted online on its platform. Moreover, the site had responded immediately after having been notified that it was hosting illegal content.

The Court of Cassation also overturned the decision against in the case introduced by actor Olivier Martinez. In 2008, a French court decided that the owner of the website had an editorial responsibility, even if the website was a digg-like service (where the users can vote which news comes on first) and forced him to pay 1000 euro in damages for infringing the actor's privacy and an additional 1500 euro in legal fees. The Court of Cassation considered a hosting site in terms of LCEN and therefore not liable for the content posted on it.

An important clarification in relation both to Dailymotion and the Amen hosting site is the necessity to correctly formulate the requests for content withdrawal by taking all actions stipulated by the law.

According to LCEN, the request to withdraw content must cover a series of elements including the notification date, the identification data of the notifying person (either natural or legal), the identification data of the addressee, the description of the litigious facts and precise location, the reasons for the withdrawal, including legal basis and justification, , a copy of the correspondence addressed to the author or editor of the litigious actions asking for their interruption, withdrawal or modification, or the justification of the fact that the author or editor could not be contacted.

The subsidiarity principle is thus observed, meaning that a hosting site cannot be required to withdraw content before proving that the author of the content has been first contacted and required to withdraw the respective content. This could be the end of mass withdrawals of files without any previous procedure.

However, the Legal Commission of the Senate seems to want to change the rules and on 15 February 2011 it proposed the creation of a new status between hoster and editor that will have filtering and surveillance obligations.

4. The US pressures the EU to pass ACTA before the end of 2011

The US government has expressed its eagerness to see ACTA passed by the European Parliament this year. The controversial treaty allows governments to “order an online service provider to disclose (…) information sufficient to identify a subscriber whose account was allegedly used for infringement (…) of trademark or copyright or related rights infringement.”

Pressures from the US are expected to increase in the next months, having in view that there is the possibility that the European Parliament strikes down the agreement which means that talks would start again from the beginning. Based on a recent study issued by legal informatics experts from the German University in Hannover, ACTA raises a series of problems in complying with EU legislation and therefore the report advises MEPs to strike the act down or significantly change it.

Hence, four MEPs sent on 15 February 2011 written questions to the EU Commission asking whether it was aware of the negative legal opinion and how it intended to deal with it. One of the issues raised by the MEPs was the different formulations on the level of damages for intellectual property infringements. Another aspect is related to how the new measures targeting counterfeit products, but also copyright and trademark infringements, will avoid impeding the legal movement of medicines.

The atmosphere is already tense as recently, La Quadrature du Net has obtained from WikiLeaks exclusive access to diplomatic cables revealing pressure put by the US government on several European governments, especially in Spain, for the adoption of harsh copyright enforcement laws. The US Embassy cables refer to the EU Telecoms Package in the context of copyright, expressing its approval for cutting off Internet access without the necessity of a court order, as well as for the French three-strikes system and similar measures adopted in the UK.

They also show the main role of the US in the initiation of ACTA, the stakes involved, the debates related to the participation of developing countries, as well as the evolution of the position of the European Union during the negotiations. Although the EU Commission has strongly criticised ACTA, several EU national governments have negotiated the treaty behind closed doors.

On the other hand, the European Parliament has, in its turn, concluded a free trade agreement (FTA) with South Korea that is not far off from ACTA, including strong provisions on intellectual property rights protection.

The FTA with Korea, which will come into effect on 1 July 2011,

includes, just like ACTA, excessive criminal liability provisions for online intellectual property infringements.

As the rapporteur for the Industry Committee of the Parliament, Daniel Caspary pointed out, the level of IP protection standards in the EU-Korea FTA includes not only copyright, related rights and trademarks, but also designs, services marks, layout designs of integrated circuits, geographical indications, plant varieties and the “protection of undisclosed information”.

The treaty stipulates other measures including searches and seizures at the request of rights holders and gives broadcasters the right to prohibit re-broadcasting, fixation, and communication to the public of their TV broadcasts for a fee.

According to Green party member Jan Philipp Albrecht, the FTA is similar to ACTA as the information about the provisions of the agreement were kept secret before the it was signed by the parties involved.

5. German law on Internet blocking challenged in Constitutional Court

On 22 February 2011 the German Working Group against Internet Blocking and Censorship (AK Zensur) submitted their complaint against the German law on Internet blocking to Germany's Constitutional Court. The law is directed against online child abuse material and had come into force on 23 February 2010, setting a one-year deadline for the complaint.

AK Zensur and many others had fiercely opposed the law and announced that a complaint would be filed when the law was enacted by Parliament in June 2009. An online petition against the law collected 134 000 signatures in May and June, the highest number ever achieved at the German Parliament's online petitions system. A curious situation emerged when the government changed after the elections in September 2009, taking the liberal party FDP into power in a coalition with the conservative CDU/CSU. The FDP had opposed the blocking law in their election campaign, and before the law came into force, it was agreed that it would not be fully implemented. In a legally dubious move, a “non-application directive” by the Interior minister stipulated that initially, only take-down was to be attempted, and the governing parties agreed that a review would be held about a year later.

This created something of a legal absurdity as the consequences of the law are not fully felt at the moment when the deadline to complain is expiring. But AK Zensur and its lawyers are confident that even now, many aspects of the law are in clear violation of the German Constitution, and several experts had voiced similar concerns at a parliamentary hearing before the law was enacted. While political support for the ill-fated law has widely diminished, the governing parties have not found the will to abolish it in a new Parliamentary act. AK Zensur is hopeful that with its complaint, it will be able to do the politicians' homework for them. A website collecting signatures to support the complaint in the political debate will be started soon.

6. Polish civil society stirs up debate on Internet freedom

The Polish chapter in the European debate on whether Internet blocking can be conceived as a measure in fighting the dissemination of child abuse images has finally been opened. This is due to the quite successful campaign that EDRi-member Panoptykon Foundation, supported by the open source movement and Internet Society Poland, has been running over last few weeks.

It has long been unclear what position the government will take with regard to the Directive on combating sexual abuse, sexual exploitation of children and child pornography. The Polish representative in the Council refrained from taking a firm standpoint, which made us believe that the government - mindful of civil society's likely outrage - is playing hide and seek, hoping that the Directive will be adopted with the silent approval of Poland. Provoked by this game, back in November, we managed to trigger some interest in this topic in two leading daily newspapers. Right after the first article describing the alleged tactic of the Polish government was published, the spokesperson of the Ministry of Justice confirmed that the government “of course, supports the Directive”, including the concept of obligatory Internet blocking. This position was made very clear at the JHA meeting on 3 December 2010.

To us it clearly meant that the government was trying to do some policy laundering. Almost exactly a year ago, - Polish Prime Minister Donald Tusk, in a public debate with NGOs and Internet activists, acknowledged that blocking Internet sites is a flawed measure and should not be applied. Moreover, he promised that any future plans to introduce legal measures affecting Internet freedom would involve consultation with civil society. The present policy and the way it has been carried out so far clearly contradicts both promises.

In an attempt to draw more attention to what is happening in Brussels with the support of our government, Panoptykon organised a public debate under the auspices of Polish Ombudsman, Prof. Irena Lipowicz which took place on 10 February 2011. The discussion panel was composed of representatives of the Ministry of Justice and four foundations representing both sides of the debate: Panoptykon,, Safe Cyberspace and Nobody's Children. The audience consisted mainly of journalists, academic society representatives and technologically minded individuals.

While Panoptykon argued that there was no collision between protecting children and Internet freedom because child abuse images can be effectively removed and therefore do not need to be blocked, our opponents claimed the opposite, on the grounds that international cooperation did not function well enough. The debate revolved around the following issues: what are the technical possibilities of removing illegal content; how to ensure both fast reaction and due process; what are the challenges of international cooperation; how can we prove that blocking tends to be used instead of and not in addition to fighting crimes against children; how blocking can disturb pending police investigations; how big the problem of child abuse images on-line really is; and what role can the Internet community play in addressing the problem.

The Government's representative, Tomasz Darkowski, argued in favour of web blocking. Mr Darkowski stressed that the Directive should, in the first place, prevent Internet users from accidental and unwanted contact with child abuse images. He also expressed a strong belief that web blocking would remain strictly to child abuse images and there were no reasons to worry about possibilities of extending blocking to other types of content. This claim is all the more astonishing when one can already hear some politicians suggesting that hate speech and illegal gambling sites should be blocked. Polish experience clearly shows that it does not take a lot to change an existing law, especially in order to make it more radical.

In the end, the Ombudsman had a voice. She expressed her astonishment with the hot atmosphere of the meeting caused by the huge societal interest in the issue of website blocking. Prof. Lipowicz called in for more evidence and analysis to support our claims. It was also clear that further discussions are needed - first to explain the technical aspects of blocking and the second to analyse the risk of extending blocking to other types of “unwanted” content. The office of the Ombudsman is committed to helping us continue the debate. In the meantime, we are collecting evidence and analyses requested by the Ombudsman (the action called “Respond the Ombudsman”) and preparing an electronic publication that will summarise the debate. It will be published on 10 March 2011.

Finally, together with five other organisations, Panoptykon has sent an open letter to the Prime Minister calling for a meeting “a year after”. We want a serious discussion on the future of Internet freedom in Poland, which seems threatened not only by the blocking proposal. There are at least four other controversial and pending areas of regulation, which need to be explored: data retention, content liability, nonlinear audiovisual services and the implementation of the Telecoms Package. We hope that the Prime Minister will accept our invitation and a working meeting with the government will happen before 15 March.

With regard to Internet blocking, we hope to hear from the Prime Minister the same words we heard from Woody Allen's character, quantum physics genius Boris Yellnikoff: “However, as only a great mind can do, I've reassessed… my… position, and uh, changed my mind.”

7. France: Loppsi 2 adopted - Internet filtering without court order

The French so-called Loppsi 2 draft law was adopted on 8 February 2011 by the National Assembly as well as by the Senate without modifications, thus allowing for the blocking of Internet access of a site deemed as having “obvious” child pornographic content, without a court order. The text is challenged by the Constitutional Court that will to decide whether the new provisions are constitutional or not.

The draft law also allows for the installation of spyware by the police and reinforces video-surveillance by the use of electronic bracelets. Following its adoption, the opposition has filed an appeal against the law to the Constitutional Council, showing concerns that the draft law gives authorities “obvious inappropriate means” without “providing enough guarantees against the eventual damages to the freedom of expression”.

La Quadrature du Net has recently sent a memo to the Council asking for the rejection of the Internet filtering as being against the Constitution, inefficient and disproportionate. The group believes the law is a Trojan horse which, under false pretences, will legitimise Internet censorship. There will be no control over the way the filtering techniques will be set up and, as the blacklist of websites to be filtered will be kept secret, it will also be impossible to file complaints against filtering actions.

CFE-CGC professional unions as well as Unsa-Télécoms union from France Télécom-Orange believe this is “a festival of incompetence, where, in the name of overall security, this mixing-all text undermines fundamental principles, especially in relation to the Internet, with the announced blocking of the sites in the name of the fight against child pornography”.

8. Is the EU going to have a new common patent law?

Based on a recommendation of the Committee on Legal Affairs, the European Parliament approved on 15 February 2011 the use of the enhanced co-operation procedure to create a unitary patent system in the EU, following the request made by 12 Member States in December 2010.

Presently, there are national patents coexisting with a European patent in a complicated and fragmented system which implies that the patent holders must choose the countries where they want patent protection. Also, Member States may impose additional requirements and the European patents are only enforced by national laws. The expenses involved are also very high because the current system requires the translation into the official language of every country in which patent protection is sought. According to the European Commission, a European patent validated in 13 countries can cost up to 18 000 euro, more than half of which on translation fees.

Attempts have been made during the last year to get a unified system but they have failed mostly due to translation issues. In 2010, Spain and Italy raised objections to the EU plans to allow EU patents to be printed in any of the three EU official languages: English, French or German. The enhanced co-operation procedure allows a group of EU nations to use EU government bodies to create a new system when unanimous agreement cannot be found. Other countries can opt-in to the new rules later on. Under the Lisbon Treaty a minimum of nine Member States is enough for this procedure. The Member States, having initiated the proposal, believe a unitary patent system in EU will make things cheaper and easier, will ensure equal access to all inventors within the EU and will simplify the handling of infringements. .

The enhanced co-operation proposal is still to be examined by the Competitiveness Council on 10 March 2011. If approved by the Council as well, the Commission will have to present two proposals, one on the language regime (consultation procedure) and the other establishing the single patent (co-decision procedure).

However, a key legal opinion by the European Court of Justice is expected at the end of this month regarding the proposed “enhanced cooperation”. According to documents published until now, the Court might find the proposal in conflict with the EU treaties, which will delay the process and require changes to the proposal.

Free Software Foundation Europe (FSFE) has expressed concerns that the European Parliament might lose its legislative competence regarding patents, which will be controlled by the European Patent Organisation (EPO). A conflict of interest would then be created, the EPO being responsible both for awarding patents and for defining what is patentable.

FSFE also believes that “software patents hurt innovation and are an unnecessary burden on European software developers. (…) Legislators need to take charge and make sure the patent system contributes to the public good. As the European Patent Organisation has acknowledged, this is a decision that cannot be left to bureaucrats and the judiciary.”

Spain and Italy might also use the courts to further postpone the process.

9. European Privacy & Human Rights 2010

On Data Protection Day, 28 January 2011, Privacy International, the Center for Media and Communication Studies of the Central European University and the Electronic Privacy Information Center, released the European Privacy & Human Rights 2010 (EPHR) report. The survey reviews the landscape of national privacy and data protection laws and regulations, in addition to other laws, cases and recent developments, such as European NGOs' advocacy activities, that have had an impact on privacy in Europe in the last two years. The research field covers jurisdictions of all 27 EU Member States, two EFTA countries (Norway and Switzerland), three EU accession candidate states (Croatia, Macedonia and Turkey), and the EU itself as a jurisdiction.

Apart from the country-by-country analysis in 33 reports, the survey also provides a comparative legal and policy analysis of major privacy topics and a section on key developments country by country. A privacy ranking offers a bird's-eye view of all major developments, and summarizes them by grading the state of privacy in each state, from the ones which “consistently uphold human rights standards” (best grade) to the ones where “endemic surveillance” prevails (lowest grade), going through the states that have “adequate safeguards against abuse” (satisfactory mark), present a “systemic failure to uphold safeguards” (insufficient mark), or show signs of “extensive surveillance” (very poor grade). Key findings then list countries on a grading scale, such as the “good” ones (“European democracies (…) in good health”, with a “majority of countries having constitutional protections”) or the ones where “heroic” policy advocacy, campaigns or protests that took place that slowed down or prevented privacy intrusions or government surveillance.

A special section in the report outlines European NGOs' advocacy work in each country. Several of EDRi's NGO members have directly contributed to the success of those advocacy efforts in their respective countries. Each country report is available in English and translated into the country's official language(s). Another section provides an extensive list of privacy resources, country by country.

The EPHR report builds upon the legacy of EPIC & Privacy International's Privacy & Human Rights survey, in which more than 300 privacy experts from all over the world have already participated for over a decade, making this survey one of the world's most comprehensive report on privacy and data protection.

The “EPHR 2010” report is part of a broader project that comprises, apart from the publication of the report itself, two other action areas that will be fully developed over the next six months: the dissemination of the report on various online platforms, in particular mobile phones, so that people around Europe can learn, in their own national language, about privacy developments in their country; but also the development of awareness-raising campaigns, including three “games” that teach people how to decode web access logs and IP addresses and tie them to a unique individual, or figure out which countries' servers their e-mails may have gone through, and may possibly have been intercepted.

In addition to the research and production team, made up of people from the Center for Media and Communication Studies at the Central European University and Privacy International, more than 90 privacy and data protection experts (privacy advocates, academics, lawyers and policy experts) from 32 countries all over Europe, contributed with updates from their respective countires. The European Commission funded the EPHR project through its “Fundamental Rights and Citizenship Program (2007-2013)”.

10. ENDitorial: Internet blocking - EP opts for leadership over populism

On 14 February 2011, the Civil Liberties Committee of the European Parliament (EP) voted on the European Commission's proposal on web blocking.

The European Commission had proposed mandatory EU-wide blocking and limited safeguards. The approach is populist, simplistic and, by giving Member States the option to take cosmetic measures to hide their inaction, profoundly dangerous and counterproductive.

The Committee addressed the issue in numerous debates, from September 2009 until now and held a two-day hearing on the subject to get views from international institutions, police and law enforcement bodies, child rights organisations and EDRi, as the sole digital rights voice in the event. As a result of this extensive analysis, Parliamentarians increasing came to the conclusion that the issue was more complex and sensitive than it first appeared.

As a result, under the leadership of rapporteur Roberta Angelilli (EPP, Italy), the Parliament voted for a text which moved the focus away from technically inefficient measures and towards concrete tools to fight crimes against children. Despite bizarre and desperate claims from some quarters that this approach was somehow paedophile-friendly, the Committee courageously rejected simplistic lobbying and took a leadership role - pushing for effective policy across the European Union.

The text also harmonises the approach to existing European Union and European Convention on Human Rights obligations with regard to restrictions on communication. This will enable more coherent, predictable and proportionate approaches in the future on a European level.

The Parliament text of Article 21 and Recital 13 prioritises concrete measures aimed at addressing the existence of the illegal content on websites, investigating the actual crimes and the criminals committing them, as well as rescuing the victims.

It does this specifically by placing the emphasis on: - removal at source: This measure undermines the same existence of illegal material, avoiding “all” risks of re-victimisation, while allowing Internet providers to keep record of content to facilitate police's criminal investigation and victim identification;

  • international cooperation: It is particularly important to remove the systemic problems in communication and cooperation with third countries' authorities that lead to illegal content in websites hosted abroad not being dealt with expeditiously (this cooperation could include, for example, the setting up of single points of contact for competent authorities);
  • European annual reporting on removal activities: This will help identify individual success and failures of Member States at a national and international level, to disseminate best practices and ensure maximum efforts to prosecute criminals and identify victims.

The Parliament's text will serve to clarify and harmonise the EU's approach to existing legal obligations on restrictions to communications. In particular:

  • The least restrictive alternative is prioritised, namely, the deletion of websites. Only when this is impossible can a more restrictive method (such as blocking) be considered.
  • In line with the European Convention on Human Rights, alternative measures for removal at source (such as blocking) must be “necessary” (ie, the measure must be effective and no other measure can be reasonably available taking into account technical and economic feasibility)
  • Respecting existing case law of the European Court of Human Rights, restrictions must be imposed in a predictable (according to law), transparent (ie, the measure should be based on relevant factors or sufficient evidence) and proportionate (ie, the negative effects of a measure should be counter-balanced by its benefits in terms of a legitimate public policy objective) manner.

13. Agenda

archief/edri_gram_nieuwsbrief/23_02_11.txt · Laatst gewijzigd: 2017/09/11 21:36 door KapiteinG