Wikimedia and the EU
Monitoring Report
tl;dr
A ruling by the Court of Justice of the European Union turned the “right to
be forgotten” from a philosophical concept to a Google form with submit
button. Meanwhile the European Council is thinking about its position on
net neutrality while the European Parliament is constituting its
committees.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
ToC
1. Court decision grants EU citizens the “right to be forgotten” by search
engines
2. Net Neutrality negotiations in the European Council
3. Post-Election Political Groups, Parliamentary Committees and
Commissioners
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#righttobeforgotten
1. CJEU rules on Google Spain vs. AEPD case
Why is this relevant?
It allows citizens to request personal information to be taken down. While
the ruling applies to search engines and explicitly takes “public interest”
into account, such requests will inevitable change the way information is
shared online. In essence, the obligation to comply with the “right to be
forgotten” will be applied to other search engines and could be extended to
other projects compiling personal data.
Furthermore, it is unclear who will have the last say in granting such
requests, which raises questions about freedom of expression and
censorship.
What happened?
The Court of Justice of the European Union in Luxembourg ruled [1] that if
the information found searching a person’s name is “inadequate, irrelevant
or no longer relevant, or excessive in relation to the purposes of the
processing [...] the information and links concerned in the list of results
must be erased.” The decision refers to the currently active Data
Protection Directive from 1995 (Directive 95/46). [2]
In practice this resulted in Google providing a form for EU citizens to
request take-downs. It can be expected that other search engines will come
up with similar solutions. [3]
What comes next?
The current Data Protection Directive was adopted in 1995, well before web
2.0 and the massive collection of data was foreseeable. This pushed the EU
to work on new legislation in this field for the past few years, namely the
General Data Protection Regulation. [4] Its negotiation will be one of the
first major tasks of the newly elected European Parliament. It is currently
in the trialogue stage - meaning that it is being negotiated between the
Parliament and the Council. This new legislation will likely introduce new
definitions to the terms “data processor”, “personal data” and “right to be
forgotten/right to oblivion”, which will effectively produce a new
regulatory framework. We’re expecting work on this dossier to resume as
soon as the new parliamentary committees are established and the new
Commission is confirmed, most likely December 2014 or January 2015.
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#netneutrality
2. Net Neutrality negotiations in the European Council
Why is this relevant?
Network neutrality is the principle that Internet service providers and
governments should treat all data on the Internet equally, not
discriminating or charging differentially by user, content, site, platform,
application, type of attached equipment, and modes of communication.
Depending on the definition, this might prohibit zero-rated access to
services, even if they are run by non-for profits and no money is exchanged
as part of the deal.
What happened?
The European Parliament has agreed on its final proposal defining net
neutrality, which seems to have closed most of the loopholes of the initial
text and would make it hard for zero-rated projects to be run within the
EU.[5] Currently, the European Council (Member States’ governments) is
reviewing this text and trying to come up with its own position. [6]
It looks like many national governments are much more likely to listen to
the telecoms, which are in favour of a much weaker net neutrality
definition allowing them to sell bandwidth/speed to websites and services.
The UK and Spain seem to be especially interested to change the Parliament
definitions.
What comes next?
Once the Council has agreed on its position, the new legislation would have
to be negotiated with the European Parliament in the parts where there are
discrepancies between the two versions. As net neutrality is part of a much
larger Telecoms Package which also includes things like roaming charges,
the process might take a while and we could see some horse-trading
in-between unrelated issues. I would expect this to remain a hot issue
throughout 2015.
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#netpolitics
3. Post-Election political groups, parliamentary committees and
commissioners
Why is this relevant?
Who will be sitting in committees and heading directorates that will be
handling the dossiers relevant to us? Knowing the people we will work with
for the next five years can help us prepare a targeted message and more
realistic strategy.
The key positions to look out for here are the new Commissioners who will
be responsible for the internal market (copyright), digital affairs
(financing digital agenda projects, other internet “stuff”) and culture
(includes audio, video and multimedia policies).
When it comes to the European Parliament, the committees of crucial
importance to us so far have been Internal Market and Consumer Affairs
(IMCO - dealing with copyright), International Trade (INTA - dealing with
international agreements such as ACTA and TTIP) and Civil Liberties,
Justice and Home Affairs (LIBE - dealing with data protection).
What happened?
Currently the Political Groups [7] are being formed. Once this has been
done they will elect chairs and nominate members to sit on each committee.
In the meanwhile, there has been some rumour about a possible “Digital
Affairs” committee. [8] The person who proposed this, digital rights
friendly Dutch MEP Marietje Schaake, might however be nominated to become
Commissioner and leave the Parliament. We will witness a lot of politics
and negotiations in the coming weeks.
In the run-up to the elections MEP candidates were asked to sign a digital
rights charta, including a point about supporting copyright reform. [9] In
the end 83 of the signatories got elected into the new Parliament and it
will be exciting to see how many of them make it into relevant committees.
What comes next?
The political groups will appoint chairs. These, together with the EP
President and a non-attached MEP, will form a group called the Conference
of Presidents, which appoints members to each committee as well as their
chairs and vice-chairs. All this is done using the d’Hondt system.[11] It
should be taking place throughout June as we expect the Parliament will
deal will voting on the new President of the Commission in July.
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[1]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageI…
[2]https://en.wikipedia.org/wiki/Data_Protection_Directive
[3]https://support.google.com/legal/troubleshooter/1114905?rd=1
[4] http://eur-lex.europa.eu/procedure/EN/201286
[5]
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7-…
[6]
http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&referen…
[7]
http://www.europarl.europa.eu/aboutparliament/en/007f2537e0/Political-group…
[8]
http://www.neurope.eu/article/call-digital-affairs-committee-european-parli…
[9]https://www.wepromise.eu/en/page/charter
[10]
http://www.europarl.europa.eu/aboutparliament/en/00766d87cc/Political-bodie…
[11]https://en.wikipedia.org/wiki/D%27Hondt_system
On Tue, Jun 3, 2014 at 9:37 AM, Mike Godwin <mnemonic(a)gmail.com> wrote:
> On Mon, Jun 2, 2014 at 4:19 PM, Todd Allen <toddmallen(a)gmail.com> wrote:
> > Would WMF, being in the US, need to worry about this to any greater
> degree
> > than it worries about, say, Chinese publishing restrictions, or UK
> > "superinjunctions"?
>
> First, WMF operates globally, and while I took pains as general
> counsel, just as the WMF legal team does now, to limit exposure around
> the world, it is a mistake to suppose that jurisdictional protections
> are invariably impenetrable. See my discussion here on YouTube:
> https://www.youtube.com/watch?v=wqQOvxyj66w .
>
> Second, the ECJ decision can be used to go after editors individually,
> or organized WMF-affiliated groups.
Does the ECJ need to establish jurisdiction over Wikimedia or specific
users (presumably only those users directly involved in creating or
curating the content in dispute)? We've seen in some situations in the past
(e.g. with the DCRI and frwp) where governments have targeted users within
their jurisdiction to demand information or actions. Could that happen
here?
Should the WMF choose to refuse to implement the directive, could the ECJ
pursue penalties against the income stream of donations, or grant funding
disbursed to WMF-related entities in the EU? Could the WMF seek exemptions
under Article 9, or would we run into jurisdictional risks by doing that?
In Article 23, it reads "The controller may be exempted from this
liability, in whole or in part, if he proves that he is not responsible for
the event giving rise to the damage." Does this, perhaps in conjunction
with the Section 230 status of the WMF, provide some cover?
CC'd to the advocacy advisory list.
~Nathan