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?reference=2018/0331(COD)&l=en
[4]https://wikimania.wikimedia.org/wiki/2019:Advocacy/Copyright_Directive_Transposition_Bootshop
[5]http://www.europarl.europa.eu/doceo/document/TA-8-2019-0231_EN.html
[6b]https://edri.org/eprivacy-directive-document-pool/
[7]https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:283:0039:0045:EN:PDF
[8]https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2019-3806289_en
[9]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0077
[12]https://dig.watch/updates/new-eu-commission-president-announces-legislation-ethical-implications-ai