tl;dr
As Europe is preparing to go into a prolonged period of torpor (yes, we
don’t get work done here in August), the Commission and Parliament in
Brussels are churning out consultations, statements and documents
indicative of future legislative work. Terrorism, platforms, “artificial
intelligence”, digitisation of cultural heritage, privacy, performers
rights - there really is something for everyone!
This and previous reports on Meta:
https://meta.wikimedia.org/wiki/EU_policy/Monitor
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A Blended Bouquet of Digital Dossiers
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It looks like we will have a lot on our plate over the coming five years.
Think of this report as an annotated list of legislative and
non-legislative initiatives we will be working on.
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Digital Services Act
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After trying to fiddle with the liability rules for online platforms
through copyright (Smooth move, right?), it seems the EU is finally ready
to stare the actual monster in the eye - the E-Commerce Directive. This is
the piece of legislation that currently gives platforms protection against
illegal or infringing behaviour by their users. The liability protection
was already softened during the copyright reform, but now we are talking
about a complete overhaul.
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The questions on the table are:
*Should there be codified notice-and-action rules for online platforms in
the EU? If yes, which?
*Should we have different rules and procedures for different types of
content (e.g. defamation vs. copyright infringements)?
*Should the new legislation tackle only illegal content or also legal but
harmful content (e.g. disinformation)?
*Should all platforms be ruled by the same liability rules or would it make
sense to differentiate?
*What sort of government and judicial oversight do we need?
*Shall there be dedicated tribunals to deal with conflicts (instead of
hopelessly backlogged courts)?
Intrigued? Worried? You can have a peek at the Commission (its
bureaucrats’, not the politicians) current thinking by reading the recently
leaked “non-paper”. [1]
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As you can see, this is very horizontal and a lot of seminal decisions need
to be made soon-ish. Perhaps by the end of the year. The Commission calls
this reform the Digital Services Act [2] because they still don’t know
whether it will be a Regulation or a Directive. They also probably want to
signal a departure from the current regime.
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Officially, beginning of next year there will be a public consultation on
this and we could expect a legislative proposal by the end of 2020. Such
proposals are usually published just before the Christmas break.
Informally, a lot of the conversations are already in full swing.
As it often happens, Wikimedia is currently the only voice in this
conversation speaking from a not-for-profit platform's perspective.
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TERREG
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Not long after the European Parliament adopted its final report on the
Terrorist Content Regulation [3] that we welcomed, this troubled dossier is
affected by another turn of events. Since its former Rapporteur Daniel
Dalton (UK) had not made it into the European Parliament, a new person was
announced to lead the file into the trilogues: Patryk Jaki (ECR PL), former
deputy-Minister of Justice. Some expect him to adopt a harder line in the
debates, which combined with the expected push by the European Commission
to reinstate proactive filtering and referrals could make the outcome grim
for freedom of speech online.
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CDSM Transposition
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The copyright reform has passed, but our efforts are now focused on making
sure that the transposition in all EU/EFTA member states is as beneficial
to free knowledge as possible. For this we have joined forces with the
Communia Association and Centrum Cyfrowe. We are already in touch with many
national and regional communities and activists. In spring we will release
a “Transposition Document Suite” which should contain documentation and
expert knowledge on how to best transpose the directive. We will also
organise a “Transposition Bootcamp” (Warsaw, 11-13 October, tba) where
activists can come together to work on this with experts in the field.
There will also be a "Copyright Transposition Bootshop" at Wikimania, last
session on Saturday.[4]
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In parallel, on Article 17 (f.k.a. Article 13, a.k.a. “upload filters”) the
directive actually commands the European Commission to run a stakeholder
dialogue and write-up guidelines for Member States on how to make sure that
infringing content goes down while non-infringing content stays up (see
Article 17(10) under link [5]). We expect the stakeholder meetings to start
after summer and guidelines to be released in January. Depending on the
result and how far countries are in their implementation process, this
could be a useful advocacy document.
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E-Privacy
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The E-Privacy Regulation shall update rules on cookies and instant
messaging. Wikimedia projects are currently not covered. The dossier itself
has been stuck in the trilogue phase for well over a year now. Last week
the Finnish Presidency of the Council tried to get things off the ground by
floating new proposals [6a]. Still, it seems solidly stuck. More info in
EDRi’s document pool: [6b]
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Recommendation 2011/711/EU
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The European Commission is evaluating its Recommendation 2011/711/EU [7].
In this process, it is requesting feedback from interested stakeholders by
26 August [8]. Now, if you aren't exactly sure what 2011/711/EU stands for
- don't worry! Very few people do. It is a recommendation on “digitisation
and online accessibility of cultural material and digital preservation”. It
is a document by which the Commission nicely asks Member States to digitise
as much as possible within their GLAM sectors, to make sure public domain
material is free to reuse and to also give access to copyrighted material
as much as possible. It was a key tool for us in getting the “public domain
safeguard” written into the copyright reform. If you want to work on this
with us, please get in touch!
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Performers Rights in the AV Sector
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In 2011 the European Union extended the term of protection for performances
and phonograms from 50 to 70 years. [9] Since then the performers in the
audiovisual sector were naturally extremely annoyed that their protection
is still at 50 years. Apparently their advocacy efforts have paid of at
least a little bit now, as the Commission has launched a consultation on
the rights of performers and producers in the audiovisual sector. [10]
Oddly, it is a “targeted” consultation, which means that not all
participation is welcome. Still, online platforms and cultural heritage
institutions are considered relevant stakeholders. Deadline is 30
September.
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“Artificial Intelligence”
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Barely elected into office, the new Commission President Ursula von der
Leyen has made “legislation for a coordinated European approach on the
human and ethical implications of Artificial Intelligence” a top priority.
[11] She stated that she wants a proposal by the end of her first 100 days
in office.[12] Going fast on laying out rules on a little understood topic
for a whole continent… what could go wrong, right?
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Disinformation
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An evergreen. The Commission will basically analyse how the EP elections
went and then decide on how to proceed. Apart from throwing money at
investigative journalism [12] (please more!) we could see a stand-alone
legislation, another round of industry self-regulation attempts or an
attempt to tackle this through the horizontal legislation like the Digital
Services Act.
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[1]
https://www.politico.eu/wp-content/uploads/2019/06/SKM_C45819062520030.pdf
[
2]https://twitter.com/GabrielMariya/status/1151502996242665473
[3]
https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?refere…
[4]
https://wikimania.wikimedia.org/wiki/2019:Advocacy/Copyright_Directive_Tran…
[5]http://www.europarl.europa.eu/doceo/document/TA-8-2019-0231_EN.html
[6a]
https://www.politico.eu/wp-content/uploads/2019/07/SKM_C45819072611280.pdf?…
[
6b]https://edri.org/eprivacy-directive-document-pool/
[7]
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:283:0039:0…
[8]
https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2019-38062…
[9]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0077
[10]
https://ec.europa.eu/digital-single-market/en/news/targeted-consultation-ex…
[11]
https://ec.europa.eu/commission/sites/beta-political/files/political-guidel…
[12]
https://dig.watch/updates/new-eu-commission-president-announces-legislation…
[13]
https://ec.europa.eu/digital-single-market/en/news/media-freedom-and-invest…