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/
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>.*
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
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
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>