Publicpolicy July 2020

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European Policy Monitoring Report - July
by Dimitar Parvanov Dimitrov 31 Jul '20

31 Jul '20

Salut la liste! Last month we took you through a list of all the dossiers we are working on, so we want to be more concise this time. Europe is going into summer lazy mode, which includes the EU institutions, so we will focus on the consultations we need to answer over summer, namely: Digital Services Act, Cultural Heritage & Digital Technology, and CDSM Article 17 implementation. We’d be happy if you could chip in some answers, examples or sources, else we wish you a great August! --Your Brussels team This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor ====== Digital Services Act - Consultation --- This legislative cornerstone of the Commission’s agenda is currently undergoing all the preparatory motions of Brussels politics before it will be announced, most likely, by the end of the year. The European Parliament is considering the proposals in a number of own initiative reports [1] that are likely to be voted on in September. Meanwhile the Commission is asking for feedback in a massive consultation [2]. We have until 8 September to submit answers and this is the main thing you can help us with over summer. Go to the Meta-Wiki page and leave comments or replies to some of the consultation questions: https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_the_Digital_Servi… ====== Cultural Heritage & Digital Technologies - Consultation --- Recommendations by the Commission rarely play an important role. But when they do, they can be crucial. Such was the case with Recommendation 2011/711/EU [3], which said that public domain works should remain in the public domain after digitisation. No one even cared about this at the time in 2011. But when the Copyright in the Digital Single Market Directive was negotiated and the Council opposed the Parliament on such an article during the trilogues, this recommendation allowed the Commission to support a “public domain safeguard”, which we got in the end. The European Commission now wants to update this document and is asking for input. [4] The main aspect is how to support the digital transformation of the cultural heritage sector. Needless to say that this is important to us and if you have any ideas in the field (as wild as they may be) please get in touch on or off list. Let’s feed great ideas into the policy process! ====== Article 17 Guidelines - Consultation --- The Copyright in the Digital Single Market Directive is a strange beast. The text pretty much admits that squaring the demands of Article 17 (i.e. preventing the appearance of illegal content without pre-filtering) isn’t likely. It therefore requires the Commission to set up a Stakeholder Dialogue to come up with transposition guidelines to help Member States.[5] Wikimedia is part of this dialogue, but the last meetings were cancelled due to the COVID-19 pandemic. They have now been replaced with a public consultation. [6] In the meantime, some countries, like Germany and France, have gone ahead and made proposals. We also, together with Communia and EDRi, managed to put some ideas on the table on how to protect user rights in this battle between platforms and rightholders. [7] Needless to say, we will push the same lines in the consultation. In case your national government runs a consultation itself, please get in touch so we can be coordinated (we know that Sweden and Germany are doing so). ====== Terrorist Content Regulation - TERREG The practicalities of the pandemics crisis completely stalled the trilogue on the matter. Last month we explained that the French Constitutional Court struck down provisions resembling those in the regulation proposal[8], which also contributed to lack of progress. How to legislate when parts of the new act are already known to be unconstitutional in one of the member States is a question that the German Presidency of the EU will grapple with. Finalising this work is high on the Presidency agenda - but so it was for the Finnish and the Croatian administration. Will the hot potato turn cold? We will know in September. ====== Wikimédia France Joins Online Hate Speech Observatory --- Wikimédia France has become a member of the Online Hate Speech Observatory. [9] It is a French body established by the “Avia” law, which targets online hate speech. [10] WMFR will try to present community-based approaches successfully moderate content. This should also help them increase their network and position themselves on the French stakeholder map as an organisation speaking for community-driven projects. ====== Wikimedia Austria on Austrian NetzDG --- The Austrian government is proposing new legislation on forcing platforms to combat hate speech online.[11] We have seen such laws being passed by Germany in France nationally. This is also something that the Commission will tackle with the Digital Services Act. Wikimedia Austria has, together with epicenter.works, released an open letter to the relevant Minister [12] underlining the importance of judicial oversight and pointing out that community-based moderation models exist and they must be taken into account by the lawmaker. ====== Wikimedia España Works on Copyright --- We wanted to make space in this report to let you know a bit more about WMES. The chapter has dedicated some staff time to public policy activities. Virginia is doing an amazing job in coordinating a budding coalition the implementation of the Copyright Directive. She has made sure WMES participated in the government consultation and has had meetings with Ministry officials. Sadly, the person on the board of the chapter who was wholeheartedly supporting these efforts and set the public policy work on sustainable tracks, Elena Sanz, has passed. [13] We will be forever grateful for her dedication to EU affairs and relentless support for our work, whether in Spain or in the corridors of the European Parliament in Strasbourg, where she went knocking the doors of Spanish MEPs to request rejection of article 13. She will be dearly missed! ====== “Privacy Shield” Axed by CJEU --- It basically means that not all European user data can be freely moved to non-EU servers. More from NOYB.eu, who brough the case to court: https://noyb.eu/en/faqs-cjeu-case ====== END ====== [1]https://oeil.secure.europarl.europa.eu/oeil/search/search.do?searchType=0 [2] https://ec.europa.eu/digital-single-market/en/digital-services-act-package [3]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011H0711 [4] https://ec.europa.eu/digital-single-market/en/news/public-consultation-oppo… [5]https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=62198 [6]https://ec.europa.eu/eusurvey/runner/4fd43123-6008-a214-f572-4ecd331b9e0e [7] https://www.communia-association.org/2020/04/02/article-17-stakeholder-dial… [8] https://www.conseil-constitutionnel.fr/actualites/communique/decision-n-202… [9]https://twitter.com/csaudiovisuel/status/1286226498169470978 [10] https://fr.wikipedia.org/wiki/Loi_contre_les_contenus_haineux_sur_internet [11] https://netzpolitik.org/2020/plattformregulierung-oesterreich-kuendigt-eige… [12]https://www.wikimedia.at/offener-brief/ [13]https://www.wikimedia.es/2020/07/06/hasta-siempre-elena/

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Wikimedia Foundation joins amicus brief in support of Open Technology Fund
by Aeryn Palmer 28 Jul '20

28 Jul '20

Hi public policy list, Last Friday, the Wikimedia Foundation joined an amicus curiae brief in support of the Open Technology Fund's (OTF) <https://en.wikipedia.org/wiki/Open_Technology_Fund> challenge regarding U.S. Agency for Global Media’s (USAGM) <https://en.wikipedia.org/wiki/U.S._Agency_for_Global_Media> decision to dismiss OTF's leadership. The brief was sent to the U.S. Court of Appeals for the DC Circuit <https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Distri…>, where OTF’s challenge is currently pending. Wikimedia joined Access Now, EFF, Human Rights Watch and other organizations in this brief to educate the court about the importance of the OTF's independence and how the Agency’s actions threaten free expression worldwide. For the full brief, see: https://www.accessnow.org/cms/assets/uploads/2020/07/OTF-Amicus-Brief-final… For background on the effort to save the OTF's independence, see: https://saveinternetfreedom.tech/ For those following the situation, you may see news about multiple legal challenges to USAGM's actions. Last Tuesday, there was a temporary injunction from the Court of Appeals, i.e., a temporary halt on OTF's leadership change, and the day prior, the Attorney General of the city of Washington, D.C. filed a separate lawsuit in the D.C. Superior Court. We’ll be monitoring these efforts to protect OTF’s independence as they proceed. Best, Aeryn -- *Aeryn Palmer* (they/them) Legal Director Wikimedia Foundation <https://wikimediafoundation.org/> *California Registered In-House Counsel* *NOTICE: This message may be confidential or legally privileged. If you have received it by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation and for legal/ethical reasons, I cannot give legal advice to, or serve as a lawyer for, community members, volunteers, or staff members in their personal capacity. For more on what this means, please see our legal disclaimer <https://meta.wikimedia.org/wiki/Wikimedia_Legal_Disclaimer>.*

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Wikimedia Foundation statement on new Hong Kong security laws
by Sherwin Siy 15 Jul '20

15 Jul '20

Dear all: As some of you might already be aware, the Chinese government has recently passed and started implementing a new national security law applicable in Hong Kong which prohibits a broad range of speech and grants wide-ranging surveillance powers to authorities. We are concerned that this law may have serious implications for protection of the privacy of users on Wikipedia and other projects operated by the Foundation, potentially enabling authorities to request personal user data. After consultation and discussion, the Foundation’s Legal Department has prepared a public statement in response to this law and the potential threats to Wikipedia user privacy. We encourage you to review and share this statement with anyone who may be interested or impacted: https://wikimediafoundation.org/news/2020/07/15/new-chinese-national-securi… We take protection of your data very seriously, and we will continue to defend our values around user privacy with any government, as we have in the past. Our thoughts are with our community in Hong Kong who are directly facing these new challenges. We hope this statement will make clear that we stand with them and will strive to protect their right to digital privacy. Thank you, Sherwin -- Sherwin Siy (he/him) Senior Public Policy Manager Wikimedia Foundation

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Wiki Movimento Brasil Statement on Bill 2630/2020
by Chico Venancio 14 Jul '20

14 Jul '20

A legislative proposal against Fake News is underway in the House of Representatives in Brazil. Contradictorily, the proposal affects projects that act against misinformation. As it is currently written, bill 2630/2020 may be a severe obstacle for Wikimedia projects in Brazil, as well as other open educational and collaborative projects. The UG Wiki Movimento Brasil wrote a statement regarding some points that our legislative representatives should consider as the law proposal advances. The statement was written with support of other civil society entities, the Coalizão Direito na Rede[1], the Wikimedia Foundation Legal Team and the office of a federal deputy active in the case. Please, help us spread the statement and pressure Brazilian representatives for more public debate! The document is available on Commons both in English and Portuguese. It is also published in our wiki in English[2] and Portuguese[3]. [1]http://plfakenews.direitosnarede.org.br/ [2]https://w.wiki/Wvk [3]https://w.wiki/WtU Chico Venancio on behalf of WIki Movimento Brasil User Group

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EU Policy Monitoring Report - June
by Anna Mazgal 01 Jul '20

01 Jul '20

Hello, folks! This month, for a change of pace, we have decided to list all the files we are working on and give you a tl;dr overview of what they are about. So a bit of a fireworks edition, since it is still consultation season and a lot of ideas are being floated. This will continue until the legislative funnel narrows toward the end of the year. For now it is a frenzy... This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor Team News: The EU Policy Team Grows In June Dimi’s family welcomed a daughter! We congratulate the parents of baby Lea and hope she will share her dad’s interest in EU affairs :) ====== TERREG a.k.a. “How to handle terrorist content online” --- According to the French Constitutional Court, decisions about taking down content should be issued by courts. [1] We’re talking about the recent decision to strike down the so-called Avia law, a much debated and controversial French legislation dealing with hate speech and terrorist content online. The Court said administrative authorities cannot take decisions about removal of content. These should be judicial ones. In consequence, the 1 hour removal rule for terrorist content has been ruled unconstitutional when taken by an administrative authority. Rings a bell? These same provisions are a part of the Terrorist Content Regulation proposal on the EU level. The fact that these ideas are already considered unconstitutional in one of the Member States puts the legislators in a delicate spot. The trilogues are now stalling, so most likely we will see in September how the French Avia saga influences the debate. ====== DSA a.k.a. “How to be a good platform?” --- Finally the European Commission has put some meat on the bones of a mythical Brussels monster called the Digital Services Act. The cornerstone legislative project of this legislative term has now two Inception Impact Assessments. One outlines the possible scenarios for ex-ante rules for online services that are considered gatekeepers in their respective markets; the other drafts a possible framing for responsibilities of platforms, both those hosting user-generated content and selling goods and services. The European Commission says the future legislation will build on the Copyright Directive and Terrorist Content Regulation (if, sorry, when adopted). The EC requested feedback on the scenarios that range from creating a list of restricted practices to requiring interoperability between services in certain cases[2]. Changes in responsibilities could range from codifying procedural obligations (now only recommended) to creation of a comprehensive system of regulatory oversight, enforcement and cooperation supported at the EU level. [3] Both Wikimedia Foundation and Free Knowledge Advocacy Group provided feedback to these plans. For details, check our remarks on ex-ante regulation [4][5] and responsibilities of platforms. [6][7] The season for insights into the EC’s thinking is not over, however. We are working on a monstrous public consultation, which we have until 8 September to submit. Please pitch in, if you have the time. [8] ====== Competition rules for online services --- The European Commission means business if it comes to tackling the notorious platforms, as the feedback+consultation push has actually 3 parts. In addition to ex-ante rules and responsibilities overhaul, the EC considers creating a new competition tool that could tackle some of the issues created in the ecosystem of online intermediaries. [9] The new competition tool could be either dominance-based (targeting dominant companies) or market structure-based (addressing structural competition problems and not only the companies that are already dominant). Each of those approaches could either have a scope limited to a certain market or a horizontal scope (applicable in many different markets). In our feedback to the Inception Impact Assessment we support the approach that combines structural approach with a horizontal scope. For details, please see the contribution by Wikimedia Foundation [10] or Free Knowledge Advocacy Group. [11]. ====== e-Evidence & Europol a.k.a. “How can a Slovak judge request data from Facebook in Ireland as part of a trial?” --- The Wikimedia Foundation has worked with local communities to comply with French and German court orders requiring a change on Wikipedia (e.g., article subject defamation). But it still requires orders that are enforceable in the U.S. except in emergency situations. That has tended to mean that European authorities contact their colleagues in the U.S. to issue us a binding order of some kind. As the new Regulation on judicial and policy cooperation are only addressed at Member States of the EU, this will likely not change. However, such Regulations often set standards copied to international agreements in the future. The current proposals would let any Member State authority to order user information from online service providers in other Member States, there’s only a need to notify the host authority (which currently has to be involved and agree). We and other civil society groups are asking if the principle of "double punishable offence" (i.e. an act has to be illegal in both countries) shouldn’t be upheld. Also, if the host authority of the service provider shouldn’t have a blocking power in case of fundamental rights issues. This would be to safeguard against abuse of arbitrary laws in some Member States. ====== Disinformation a.k.a. “Fact-checking, funding, transparency, platform rules” --- This is a long and painful conversation, cascading into the DSA discussion regularly. Before the last EP elections the Commission had social media platforms and advertisers sign a code of conduct which required everyone to be more transparent on campaign spending. The Commission is not very happy with the results and would like to do more, but hard law is difficult as the very thorny issue of protecting free speech cannot be avoided. It looks like the proposed actions will include, as a minimum, compulsory, monthly transparency reports by social media services and funding for fact-checkers and media literacy. We are waiting for the next steps, likely a communication by a Commissioner. ====== Data Strategy a.k.a. “open government data, b2b data, data hubs” --- Another consultation with a somewhat fuzzy focus. It looks at how to define high-value datasets (sets of data that Member States’ authorities must open up), how to encourage business-to-business data sharing and whether to establish data hubs (imagine portals for sector specific data). We submitted, apart from the survey answers, a position on what quality criteria high-value datasets should include and what “data trustees” could look like[12] ====== Artificial Intelligence a.k.a. “Liability and safety rules for machine learning systems.” --- A very messy business, where the EU wants to move ahead and create facts (and liability rules) before the applications and platforms become too powerful to regulate. At the same time, it would like to boost the AI ecosystem in Europe. Anything from research funding, through skills training and intellectual property, to product liability is being discussed here. We have submitted our consultation answers along four main principles: 1. Public money, public code" in administration and funding 2. No new IP rights (perhaps even kill some sui generis rights) 3. Universal rules, as opposed to specific rules for "high-risk apps" to be preferred 4. Liability to be clarified only if necessary due to gaps in legislation (otherwise current product rules) For details, please check our submission: [13] ====== CDSM Transposition a.k.a. “The copyright reform, but 27 times.” --- That is both huge and messy. We have some sort of draft legislative texts in France, the Netherlands, Belgium, Hungary, Croatia and Germany. You can follow the transposition processes on the Communia DSM Directive Implementation tracker: [14] ====== e-Privacy & GDPR review a.k.a. “Users must enjoy privacy to edit freely.” --- There are two key dossiers open on the privacy front: The e-Privacy Regulation, which deals, among other things, with tracking cookies and paywalls and has been stuck in Council for some time now. The other one is the GDPR review. On both we follow the lead of EDRi the European umbrella organisation of digital rights groups that Wikimedia is part of. [15] You can read some details of the GDPR review from the EDPS here: [16] ====== News from Hungary --- The Court of Justice of the EU (CJEU) ruled against Hungary's "civil transparency law" which mandated additional reporting for NGOs receiving donations from abroad (but was more propaganda than actual substance, mainly trying to create the impression that NGOs receiving some funding from abroad are foreign agents trying to dismantle Hungary's sovereignty). The government has indicated their intent to rescue the law with some modifications. Wikimedia Hungary skirted just below the funding limit last year and was expected to be covered by the law in 2020. You can check out the details of the court decision [17] and the news coverage in English [18]. ====== END ====== [1] https://www.conseil-constitutionnel.fr/actualites/communique/decision-n-202… [2] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [3] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [4] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [5] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [6] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [7] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [8] https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_the_Digital_Servi… [9] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [10] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [11] https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1… [12] https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_a_European_Strate… [13] https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_the_White_Paper_o… [14] https://www.notion.so/DSM-Directive-Implementation-Tracker-361cfae48e814440… [15]https://edri.org/eprivacy-directive-document-pool/ [16] https://edps.europa.eu/press-publications/press-news/press-releases/2020/eu… [17] http://curia.europa.eu/juris/document/document.jsf;jsessionid=980D8E049CE0B… [18] https://hungarytoday.hu/cjeu-rules-against-restrictive-hungarian-ngo-law/ -- Anna Mazgal EU Policy Advisor Wikimedia anna(a)wikimedia.be @a2na mobile: +32 487 222 945 51 Rue du Trône BE-1050 Brussels -- Wikimedia Belgium vzw Enterprise: BE 0563.775.480 - RPR Brussel Troonstraat 51 Rue du Trône, B-1050 Elsene/Ixelles www.wikimedia.be <https://www.wikimedia.be/> info(a)wikimedia.be <mailto:info@wikimedia.be>

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Publicpolicy July 2020