A democratic alternative to the Digital Services Act's handshake between States and online platforms to tackle disinformation

 

 

By Paul De Hert* and Andrés Chomczyk Penedo**

 

* Professor at Vrije Universiteit Brussel (Belgium) and associate professor at Tilburg University (The Netherlands)

** PhD Researcher at the Law, Science, Technology and Society Research Group, Vrije Universiteit Brussel (Belgium). Marie Skłodowska-Curie fellow at the PROTECT ITN. The author has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 813497

 

 

 

1. Dealing with online misinformation: who is in charge?

 

Misinformation and fake news are raising concerns for the digital age, as discussed by Irene Khan, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (see here). For example, during the last two years, the COVID19 crisis caught the world by surprise and considerable discussions about the best course of action to deal with the pandemic were held. In this respect, different stakeholders spoke up but not all of them were given the same possibilities to express their opinion. Online platforms, but also traditional media, played a key role in managing this debate, particularly using automated means (see here).

 

A climate of polarization developed, in particular on the issue of vaccination but also around other policies such as vaccination passports, self-tests, treatment of the virus in general, or whether the health system should focus on ensuring immunity through all available strategies (see here). Facebook, YouTube, and LinkedIn, just to name a few, stepped in and started delaying or censoring posts that in one way or another were perceived as harmful to governmental strategies (see here). While the whole COVID19 crisis deserves a separate discussion, it serves as an example of how digital platforms are, de facto, in charge of managing online freedom of expression and, from a practical point of view, have the final say in what is permissible or not in an online environment.

 

The term 'content’ has been paired with adjectives such as clearly illegal, illegal and harmful, or legal but harmful, just to name the most relevant ones. However, what does exactly each of these categories entail, and why are we discussing these categories? What should be the legal response, if any, to a particular piece of content and who should address it? While content and its moderation is not a new phenomenon, as Irene Khan points in her previously mentioned report, technological developments, such as the emergence and consolidation of platforms, demand new responses.

 

With this background, the European Union is currently discussing at a surprisingly, very quick speed the legal framework for this issue through the Digital Services Act (the DSA, previously summarised here). The purpose of this contribution is to explore how misinformation and other categories of questionable content are tackled in the DSA and to highlight the option taken in the DSA to transfer government-like powers (of censorship) to the private sector. A more democratic alternative is sketched. A first one is based on the distinction between manifestly illegal content and merely illegal content to distribute better the workload between private and public enforcement of norms. A second alternative consists in community-based content moderation as an alternative or complementary strategy next to platform-based content moderation

 

 

2. What is the DSA?

 

The DSA (see here for the full text of the proposal and here for its current legislative status) is one of the core proposals in the Commission’s 2019-2024 priorities, alongside the Digital Markets Act (discussed here), its regulatory ‘sibling’. It intends to refresh the rules provided for in the eCommerce Directive and deal with certain platform economy-related issues under a common European Union framework. It covers topics such as: intermediary service providers liability - building up from the eCommerce Directive regime and expanding it -, due diligence obligations for a transparent and safe online environment -including notice and takedown mechanisms, internal complaint-handling systems, traders traceability, and advertising practices-, risk management obligations for very large online platforms and the distribution of duties between the European Commission and the Member States. Many of the these topics might demand further regulatory efforts beyond the scope of the DSA, such as political advertisement which would be complemented by sector-specific rules as, for example, the proposal for a Regulation on the Transparency and Targeting of Political Advertising (see here).

 

As of late November 2021, the Council has adopted a general approach to the Commission’s proposal (see here) while the European Parliament is still dealing with the discussion of possible amendments and changes to that text (see here). Nevertheless, as with many other recent pieces of legislation (see here), it is expected that its adoption is sooner rather than later in the upcoming months.

 

3. Unpacking Mis/Disinformation (part1): illegal content as defined by Member States

 

We started by discussing misinformation and fake news. If we look at the DSA proposal, the term 'fake news' is missing in all its sections. However, the concept of misinformation appears as disinformation in Recitals 63, 68, 69, and 71. Nevertheless, both terms are nowhere to be found in the Articles of the DSA proposal.

 

In literature, the terms are used interchangeably or are distinguished, with disinformation defined as the intentional and purposive spread of misleading information, and misinformation as ‘unintentional behaviors that inadvertently mislead’ (see here). But that distinction does not help in recognizing either mis- or disinformation, from other categories of content.

 

Ó Fathaigh, Helberger, and Appelman (see here) have pointed that disinformation, in particular, is a complex concept to tackle and that very few scholars have tried to unpack its meaning. Despite the different policy and scholarly efforts, a single unified definition of mis- or disinformation is still lacking, and the existing ones can be considered as too vague and uncertain to be used as legal definitions. So, where shall we start looking at these issues? A starting point, so we think, is the notion of content moderation, which according to the DSA proposal, is defined as follows:

 

'content moderation' means the activities undertaken by providers of intermediary services aimed at detecting, identifying, and addressing illegal content or information incompatible with their terms and conditions, provided by recipients of the service, including measures taken that affect the availability, visibility, and accessibility of that illegal content or that information, such as demotion, disabling of access to, or removal thereof, or the recipients' ability to provide that information, such as the termination or suspension of a recipient's account (we underline);

 

Under this definition, content moderation is an activity that is delegated to providers of intermediary services, particularly online platforms, and very large online platforms. Turning to the object of the moderation, we can ask what is exactly being moderated under the DSA? As mentioned above, moderated content is usually associated with certain adjectives, particularly illegal and harmful. The DSA proposal only defines illegal content:

 

‘illegal content’ means any information, which, in itself or by its reference to an activity, including the sale of products or provision of services is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law;

 

So far, this definition should not provide much of a challenge. If the law considers something as, it makes sense that it is similarly addressed in the online environment as in the physical realm. For example, a pair of fake sneakers constitute a trademark infringement, regardless of if the pair is being sold via eBay or by a street vendor in Madrid’s Puerta del Sol. In legal practice, regulating illegal content is not black and white. A distinction can be made between clearly illegal content and situations where further exploration must be conducted to determine the illegality of certain content. This is how it is framed in the German NetzDG, for example. In some of the DSA proposal articles, mainly Art. 20, we can see the distinction between manifestly illegal content and illegal content. However, this distinction is not picked up again in the rest of the DSA proposal.

 

What stands is that the DSA proposal does not expressly cover disinformation but concentrates on the notion of illegal content. If Member State law defines and prohibit mis- or disinformation -which Ó Fathaigh, Helberger and Appelman have reviewed and found to be inconsistent across the EU- , then this would fall under the DSA category of illegal content. Rather than creating legal certainty, this further reinforces legal uncertainty and pegs the notion of illegal content to be dependent on each Member State's provisions. But where does this leave disinformation that is not regulated in in Member State laws? The DSA does not like it, but its regulation is quasi hidden.

 

 

4. Unpacking Mis/Disinformation (part2): harmful content non defined by the DSA

 

The foregoing brings us to the other main concept dealing with content in the DSA, viz. harmful content. To say that this is a (second) 'main' concept might confuse the reader, since the DSA does not define it or regulate it at great lengths.  The DSA’s explanatory memorandum states that `[t]here is a general agreement among stakeholders that ‘harmful’ (yet not, or at least not necessarily, illegal) content should not be defined in the Digital Services Act and should not be subject to removal obligations, as this is a delicate area with severe implications for the protection of freedom of expression’.

 

As such, how can we define harmful content? This question is not new by any means as we can trace back policy documents from the European Union dating back to 1996 (see here) dealing with this problem. Since then, little has changed in the debate surrounding harmful content as the core idea remains untouched: harmful content refers to something that, depending on the context, could affect somebody due to it being unethical or controversial (see here).

 

In this respect, the discussion on this kind of content does not tackle a legal problem but rather an ethical, political, or religious one. As such, it is a valid question to be asked if laws and regulations should even mingle in this scenario. In other words, does it make sense to talk about legal but harmful content when we discuss new regulations? Should our understanding of illegal and harmful content be construed in the most generous way to accommodate for the most amount of situations possible to avoid this issue? And more importantly, if the content seems to be legal, does it make sense to add the adjective of ‘harmful’ rather than using, for example, ‘controversial’? Regardless of the terminology used, this situation leaves us with three types of content categories: (i) manifestly illegal content; (ii) illegal, both harmful and not, content; (iii) legal but harmful content. Each of them demands a different approach, which shall be the topic of our following sections.

 

 

5. Illegal content moderation mechanisms in the DSA (content type 1 & 2)

 

The DSA puts forward a clear, but complex, regime for dealing with all kinds of illegal content. As a starting point, the DSA proposal provides for a general no monitoring regime for all intermediary service providers (Art. 7) with particular conditions for mere conduits (Art. 3), caching (Art. 4), and hosting service providers (Art. 5). However, voluntary own-initiative investigations are allowed and do not compromise this liability exemption regime (Art. 6). In any case, once a judicial or administrative order mandates the removal of content, this order has to be followed to avoid incurring liability (Art. 8). In principle, public bodies (administrative agencies and judges) have control over what is illegal and when something should be taken down.

 

However, beyond this general regime, there are certain stakeholder-specific obligations spread out across the DSA proposal also dealing with illegal content that challenge the foregoing state-controlled mechanism. In this respect, we can point out the mandatory notice and takedown procedure for hosting providers with a fast lane for trusted flaggers notices (Arts. 14 and 19, respectively), in addition to the internal complaint-handling system for online platforms paired with the out-of-court dispute settlement (Arts. 17 and 18, respectively) and, in the case of very large online platforms, these duties should be adopted following a risk assessment process (Art. 25). With these set of provisions, the DSA grants a considerable margin to certain entities to act as law enforcers and judges, without a government body having a say in if something was illegal and its removal was a correct decision.

 

6. Legal but harmful content moderation mechanisms in the DSA (content type 3)

 

But what about our third type of content, legal but harmful content, and its moderation? Without dealing with the issue of content moderation directly, the DSA transfers the delimitation of this concept to providers of online intermediary services, mainly online platforms. In other words, a private company can limit apparently free speech within its boundaries. In this respect, the DSA proposal grants all providers of intermediary services the possibility of further limiting what content can be uploaded and how it shall be governed via the platform’s terms and conditions and, by doing so, these digital services providers are granted substantial power in regulating digital behavior as they see fit:

 

‘Article 12 Terms and conditions

 

1. Providers of intermediary services shall include information on any restrictions that they impose concerning the use of their service in respect of information provided by the recipients of the service, in their terms and conditions. That information shall include information on any policies, procedures, measures, and tools used for content moderation, including algorithmic decision-making and human review. It shall be set out in clear and unambiguous language and shall be publicly available in an easily accessible format.

 

2. Providers of intermediary services shall act in a diligent, objective, and proportionate manner in applying and enforcing the restrictions referred to in paragraph 1, with due regard to the rights and legitimate interests of all parties involved, including the applicable fundamental rights of the recipients of the service as enshrined in the Charter.’

 

In this respect, the DSA consolidates a content moderation model heavily based around providers of intermediary services, and in particular, very large online platforms, acting as lawmakers, law enforcers, and judges at the same time. They are lawmakers as the terms and conditions lay down what is permitted as well as forbidden in the platform. While there isn't a general obligation to patrol the platform, they must react to notices from users and trusted flaggers and enforce the terms if necessary. And, finally, they act as judges by attending to the replies from the user who uploaded illegal content and dealing with the parties involved in the dispute, notwithstanding the alternative means provided for in the DSA.

 

Rather than using the distinction between manifestly illegal content and ordinary illegal content and refraining from regulating other types of content, the DSA creates a governance model for moderation of all content in the same manner. While administrative agencies and judges can request content to be taken down, under Art. 8, the development of the further obligations mentioned above poses the following question: who is the main responsible to define what is illegal and what is legal? Are the existing institutions subject to checks and balances or rather private parties, particularly BigTech and very large online platforms?

 

 

7. The privatization of content moderation: the second (convenient?) invisible handshake between the States and platforms

 

As seen with many other areas of the law, policymakers and regulators have slowly but steadily transferred government-like responsibilities into the private sector and mandated their compliance relying on a risk-based approach. For example, in the case of financial services, banks, and other financial services providers have turned into the long arm of financial regulators to tackle money laundering and tax evasion rather than relying on government resources to do this. This resulted in financial services firms having to process vast amounts of personal data to determine whether a transaction is illegal (either because it is laundering criminal proceedings or avoiding taxes) with nothing but their planning and some general guidelines; if they fail in this endeavor administrative fines (and in some cases, criminal sanctions) can be expected. The result has been an ineffective system to tackle this problem (see here) yet regulators keep on insisting on this approach.

 

A little shy of 20 years ago, Birnhack and Elkin denounced the existence of an invisible handshake between States and platforms for the protection and sake of national security after the 9/11 terror attacks (see here). At that time, this invisible handshake could be considered by some as necessary to deal with an international security crisis. Are we in the same situation as we speak when it comes to dealing with disinformation and fake news? This is a valid question. The EU policy makers seems to be impressed by voices such as Facebook’s whistleblower Frances Haugen who wants to align 'technology and democracy' by enabling platforms to moderate post. The underlying assumption seems to be that platforms are in the best position to moderate content following supposedly clear rules and that 'disinformation' can be identified (see here).

 

Content moderation presents a challenge for States given the amount of content generated non-stop across different intermediary services, in particular, social media online platforms (see here). Facebook employs a sizable staff of almost 15,000 individuals as content moderators (see here) but also relies heavily on automated content moderation, authorized by the DSA proposal under Arts. 14 and 17, in particular, to mitigate mental health problems to those human moderators given the inhuman content they sometimes have to engage with. To put this in comparison, using the latest available numbers from the Council of Europe about the composition of judiciary systems in Europe (see here), the Belgian judiciary employs approximately 9200 individuals (-the entire judiciary dealing with issues about commercial law up to criminal cases-), a little more than half of Facebook’s content moderators.

 

As such, one can argue that courts could be easily overloaded with cases that demand a quick and agile solution for defining what is illegal or harmful content if platforms didn't act as a first-stage filter for content moderation. Governments would need to heavily invest in administrative or judicial infrastructure and human resources to deal with such demand from online users. This matter has been discussed by scholars (see here). The available options they see either (i) strengthening platform content moderation by requiring the adoption of judiciary-like governance schemes, such as social media councils as Facebook has done; or (ii) implementing e-courts with adequate resources and procedures suited to the needs of the digital age to upscale our existing judiciary.

 

8. The consequences of the second invisible handshake

 

The DSA seems to have, willingly or not, decided on the first approach. Via this approach, -the privatization of content moderation-, States do not have to deal with the lack of judicial infrastructure to deal with the amount of content moderation that digital society requires. As shown by our example, Facebook has an infrastructure, just on raw manpower available, that doubles that of a country’s judiciary, such as Belgium. This second invisible handshake between BigTech and States can be situated in the incapacity of States to deal with disinformation effectively with the current legal framework and institutions.

 

If the DSA proposal is adopted ‘as is’, then platforms would have a significant power over individuals. First, through the terms and conditions, they would in position to determine what is allowed to be said and what cannot be discussed, as provided for by Art. 12. Not only that but also any redress before decisions adopted by platforms would have to be first channeled through the internal complaint handling mechanisms, as provided for by Arts. 17 and 18, for example, rather than seeking judicial remedy. As it can be appreciated, the power scale has clearly shifted towards platforms, and by extension to governments, in detriment of end-users.

 

Besides this, the transfer of government-like powers to platforms contributes to avoiding making complicated and hard decisions that could cost political reputation. Returning to our opening example, the lack of a concrete decision from our governments regarding sensitive topics has left platforms in charge of choosing what is the best course of action to tackle a worldwide pandemic by defining when something is misinformation that can affect the public health and when something could help fight back something that is out of control. Not only that but if platforms wrongfully approach the issue, then they are exposed to fines for non-compliance with their obligations, although particularly very large online platforms can deal with the fines proposed under the DSA.

 

If the second invisible handshake is going to take place, the least we, as a society, deserve is that agreement is made transparent so that public scrutiny can oversight such practices and free speech can be safeguarded. In this respect, the DSA could have addressed the issue of misinformation and fake news in a more democratic manner. Two proposals:

 

 

9. Addressing disinformation more democratically to align 'technology and democracy'

 

Firstly, the distinction between manifestly illegal content and merely illegal content could have been extremely helpful in distributing the workload between the private and public sector in a manner that administrative authorities and judges would only take care of cases where authoritative legal interpretation is necessary. As such, manifestly illegal content, such as apology to crime or intellectual property infringements, could be handled directly by platforms and merely illegal content by courts or administrative agencies. In this respect, a clear modernization in legal procedures to deal with claims about merely illegal content would still be necessary to adjust the legal response time to the speed of our digital society. Content moderation is not alone in this respect but joins the ranks of other mass-related issues, such as consumer protection, where effective legal protection is missing due to the lack of adequate infrastructure to channel complaints.

 

Secondly, as for legal but harmful content, while providers of online intermediary services have a right to conduct their business as to how they see fit and therefore can select which content is allowed or not via terms and conditions, citizens do have a valid right to engage directly in the discussion of those topics and determine how to proceed with them. This is even more important as users themselves are the ones interacting on these platforms and that content is exploited by platforms to ensure that controversy remains on the table to ensure engagement (see here).

 

However, there is a possibility to deal with content moderation, particularly in the case of legal but harmful content, that avoids a second invisible handshake: community-based content moderation strategies (see here) where users have a more active role in the management of online content has proven to be successful in certain online platforms. While categories such as clearly illegal or illegal and harmful content do not provide much margin for societal interpretation, legal but harmful content could be tackled by citizens' involvement. In this respect, community-based approaches, while resource-intensive, allow for citizens to engage directly in the debate about the issue at hand.

 

While community-based content moderation also has its own risks, it could serve as a more democratic method than relying on platforms’ unilateral decisions and it might serve where judges and administrative agencies cannot go due to the legality of content. As noted by the Office of the United Nations High Commissioner for Human Rights, people, rather than technology, should be making the hard decisions but also States, as elective representatives of society, need to make decisions about what is illegal and what is legal (see here).

 

Our alternatives are only a part of a more complete program. Further work is needed at policy level to address fake news. Sadly, as it may be, the matter is not matured yet and ripe for regulation. While the phenomena of political actors actively spreading misleading information (the twittering lies told by political leaders) are well-known and discussed, the role of traditional news media, who are supposed to be the bearers of truth and factual accuracy, is less well understood. Traditional news media are in fact a part of the problem, and play a somewhat paradoxical role with respect to fake news and its dissemination. People learn about fake news, not via obscure accounts that Facebook and others can control, but through regular media that find it important for many reasons to report on disinformation. Tsfatie and others (see here) rightly ask for more analysis and collaborations between academics and journalists to develop better practices in this area.

 

We are also surprised by the lack of attention in the DSA proposal to the algorithmic and technological dimension that seems central to the issue of fake news. More work is needed on the consequences of algorithmic production of online content. More work too is needed to assess the performance of technological answers to technology.  How to organize a space of contestation in a digitally mediated and enforced world? Are the redress mechanisms in the DSA sufficient when the post has already been deleted, i.e. "delete first rectify after"?

 

Art credit: Frederick Burr Opper, via wikimedia commons

Regulatory divergence post Brexit: Copyright law as an indicator for what is to come

Martin Kretschmer, Professor of Intellectual Property Law (CREATe Centre, University of Glasgow)

Here we have it. The first instance of regulatory divergence. The UK is leaving the European Union, and already the rules of the single market are starting to break.

In response to a parliamentary question by Labour MP Jo Stevens, then-Intellectual Property Minister Chris Skidmore said on 21 January that the UK Government had no intention of implementing the most recent EU Copyright Directive, for which the UK Government had voted in the EU Council in spring 2019. There was significant dissent among EU Member States and the Directive would not have been adopted without the UK’s support.

Does this matter? Copyright law may not be what people expected to be the first post-Brexit regulatory fault line. The public debate has been dominated by standards for labour, the environment, public subsidies and taxation, where the EU’s concern is regulatory dumping. Yet Brexiteers have said many times that leaving the EU only makes sense if it leads to the UK becoming a more attractive destination for business. This means entering into a process of regulatory competition with its closest neighbouring market. So it is advisable to pay close attention to how this negotiation will play out. And copyright law is where the choices start.

Let’s consider the parliamentary exchange in the House of Commons in full:

On 16 January 2020, a written question was asked by Jo Stevens, Labour MP for Cardiff, headed “Copyright: EU Action” (4371):

“To ask the Secretary of State for Business, Energy and Industrial Strategy, what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law.”

Chris Skidmore, then Minister of State for Universities, Science, Research and Innovation (which includes responsibility for intellectual property) answered on 21 January 2020:

“The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”

Which future domestic policies may diverge from the aims of the Directive? The Directive on Copyright in the Digital Single Market contains three different groups of measures.

The first group harmonises a number of copyright exceptions affecting cross-border uses. New provisions also make it easier to use out-of-commerce works (Article 8) and ensure that works of visual art that have reached the end of their copyright term remain in the public domain (Article 14). This first group of provisions modestly benefits cultural heritage, educational and research institutions.

The second group of interventions seeks to improve the contractual position of authors and performers. A general fair remuneration principle is established, and greater transparency of royalty statements encouraged. Article 22 also gives authors and performers a new right to revoke a licence or transfer of rights where there is a lack of exploitation. These new contractual regulations could be considered a challenge to common law principles of freedom of contract, but they lack teeth. While they have been widely welcomed by creators, routes to enforcement remain unclear. Again, there is no obvious alternative policy path.  

The third group of measures is much more controversial. They are introduced in the Directive under the innocuous sounding label of “Measures to achieve a well-functioning marketplace for copyright”. The headline intervention is a change to the liability regime of platforms that host user-uploaded content. Article 17 (formerly 13) creates a new category of ‘online content sharing service provider’ that will no longer benefit from the ‘safe harbour’ of the e-Commerce Directive, a core piece of internet legislation adopted in the year 2000. The e-Commerce Directive exempts platforms from liability for unlawful content found on their services (if removed “expeditiously” following notice).

In the polarised debate of the Copyright Directive, Article 17 was pushed as a decisive industrial policy measure that would enable the music industry to improve licensing deals and revenue sharing offered by Google’s YouTube service. In an effective trope coined by the UK music industry, Article 17 was to close the “value gap” between European creators and US technology giants. Opponents characterised the measure as a “censorship law” that would lead to the default use of upload filters and the disappearance of “memes” (because they re-use identifiable copyrighted materials).

A typical exchange between the two sides of the debate can be found in these letters published by the Financial Times (paywalled) during the final stages of the legislative process: Julia Reda: State-of-the-art copyright filters threaten freedom of expression; Michael Grade: Copyright reform will put an end to this freeloading. Recent evaluations of the Copyright Directive can be found here and here.

Boris Johnson (then out of government) had tweeted near the end phase of the European legislative process on 27 March 2019: “The EU’s new copyright law is terrible for the internet. It’s a classic EU law to help the rich and powerful, and we should not apply it. It is a good example of how we can take back control”.

On the balance of evidence analysed by independent experts (to which I contributed), the Prime Minister seems to be correct. The industrial policy measures of the Copyright Directive will have numerous unintended consequences beyond the music sector, and will make market entry and user-led innovation harder.

So, has the UK suddenly seen the light? Does evidence matter? Are we observing the emergence of a coherent policy addressing the creative industries?

There is a possibility that the UK acted cynically, supporting the Directive in the European policy making process in the anticipation that it would damage the economy of the EU’s digital single market. This suspicion is implied by the outrage felt towards the UK’s policy U-turn last week. More likely, the UK civil service just kept their heads down during the copyright negotiations. They may not have wanted to draw attention at a moment of sensitivity over the Withdrawal Agreement. And perhaps the UK’s politicians were distracted. But this position will not do for much longer.

Post Brexit, regulatory divergence on copyright will not simply be a matter of domestic policy choice, as implied by the ministerial answer. Critically, it will depend on what new trade arrangements look like. Keeping a safe harbour for content sharing platforms in place may attract tech firms to set up in the UK. Yet there is also an agenda targeting the major digital platforms. The UK government is already committing to impose a “duty of care” liability (Queen’s Speech of 19 December: “My Ministers will develop legislation to improve internet safety for all [Online Harms Bill].” The government also says it will continue to pursue a Digital Services tax.

It is already clear that these platform measures cannot be insulated from wider Free Trade Agreements (FTAs) sought with both the EU and the US. In addition, looking at past FTAs negotiated by the US, there is a track record of taking aggressive intellectual property positions. For example, in 2004 Australia was unable to shelter its drug price control scheme (Pharmaceutical Benefits Scheme PBS) from significant change, and conceded increased intellectual property standards.

When studying the UK’s options as they affect culture and the creative industries, independent evidence on raising or decreasing obligations of platforms (with or without intellectual property dimensions) will be critical. There is an urgent need to develop a more coherent framework as trade negotiations begin in earnest. The AHRC funded Creative Industries Policy & Evidence Centre (PEC) is already studying the UK’s international competitive position. In this context, Prof. Philip Schlesinger and I are in the process of mapping the regulatory landscape for online platforms.

The legitimacy of governments is increasingly in doubt. The Brexit process itself is a challenge to established procedural principles that lend legitimacy to a ruling power. Legitimacy requires that a government can explain the reasons for its actions.

The UK Government needs to be held to this standard. We need to know on what basis, and for what aims and purposes, the UK intends to regulate contested norms, such as the liability of platforms under copyright law. Why does the UK wish to diverge? Just to signal that it is taking a different stance? Or is there actually a game-plan? Answers are needed before we enter into trade negotiations that will then fundamentally shape “domestic choices”.

Barnard & Peers: chapter 27

Photo credit: Gero Nagel, via Wikicommons

Revision of Audiovisual Media Services Directive – Video-sharing Platforms

Professor Lorna Woods, University of Essex

The revision of the Audiovisual Media Services Directive has been discussed since 2016.  There were significant differences between the responses of the Council and the European Parliament to the Commission’s proposal.  There have been 9 informal trilogue meetings up to and including that of 26th April 2018.  Although the institutions state progress has been made, the text has not yet been finalised - ‘technical details’ remain to be agreed in June. In response to a request to see the preparations for trilogue negotiations, the Council rejected the request even to access the agreed compromise positions, stating that “this file is under heavy pressure from interest groups which are particularly interested in the negotiations on commercial communications (i.e. advertising) where economic stakes are high”.  The concern is that even existing agreements may be undermined. Nonetheless, from the documents that are available some comments can be made. 

This note focusses on one of the more startling innovations from the Commission’s proposal – the provisions on “video-sharing platforms” - a further extension in scope of the AVMSD (or some parts of it).  So, the first point to note is that although there might be significant differences between the institutions as far as the nature of the obligations to be imposed on video-sharing platforms, and even understanding as to what constitutes such a platform, it seems that the institutions are agreed that some obligations should be imposed.  The question is not ‘if’, but ‘how’.

What is a Video-sharing Platform?

The proposal added at Article 1(1)(aa) a definition of “video-sharing platform” (VSP), with a corollary definition of “video-sharing platform provider” at Article 1(1)(aa).  As originally drafted, the definition of VSP contained 6 elements:

-          that there be a service within the meaning of the TFEU – in this, there is the same starting point as for audiovisual media services;

-          the service consists in the storage of a large amount of programmes (as defined in the directive, and this definition is proposed to be changed from its current formulation too);

-          that the provider of the service does not have editorial responsibility (another defined term) for the content stored – this seems to be a key element for drawing a boundary between on-demand audiovisual media services and VSPs, as on-demand AMS providers may also organise content;

-          the organisation of the stored content is determined by the service provider, whether automatically or not;

-          the principal purpose of the service (or of a ‘dissociable part thereof’) is “devoted to providing programmes and user-generated videos to the general public, in order to inform, entertain or educate’; and

-          as for other services within the AVMSD, the service is made available over an electronic communications network.

The obvious comment that was made – and that was made about the definitions in previous incarnations of the directive – is that there will be some very difficult boundary cases, especially as services and technologies develop.  This remains the case, but it seems that this definition is broad enough to catch most social networking sites, providing the requirement of ‘to the general public’ does not mean that open to all free to use sites that have a brief registration process are not open ‘to the general public’.

Some points of difference in the approach of the various institutions can be noted.  The Council proposal sought to remove the phrase ‘large amount of’, while the European Parliament suggested that the activity was not ‘storage’ but the ‘making available’ of such videos ‘to the general public’.  The first part of the European Parliament’s amendment makes the scope of the definition wider. One might infer that the Council’s concern was to make it clear that live streaming sites did not fall within the AVMSD and might be regulated under national rules, as can been seen in Council proposed recital 29a (subject to the constraints of the e-Commerce Directive or general principles of Union law – depending on the content of the service), though the Council has also proposed the removal of the word ‘hosting’ from the list of means by which the content may be organised.  Whether or not this is a ‘technology neutral’ approach – which is part of the motivation for revising the AVMSD -depends on what is meant by ‘technology neutral’ and the level of granularity as which the technology is to be assessed.   

The inclusion of the requirement that the videos must be ‘in order to inform, entertain or educate’ tracks the terminology used to define audiovisual media services which is so broad that one might have thought that nothing could fall outside scope.  The Court in Peugeot (Case C-132/17) ruled that self-promotional audiovisual media channels on YouTube did not satisfy this requirement – a conclusion that will make decisions about the applicability or otherwise of advertising rules to user-generated content more significant – and bring into focus questions about the extent to which general consumer protection rules would apply in this field.

There is a definition of “user-generated video” added at Article 1(1)(ba) which tracks the definition of “programme” in so far as it describes the format of the material, but is limited to such audiovisual material that “created and/or uploaded to a video-sharing platform by one or more users”.  This requirement, as drafted by the Commission, does not require the user to be uploading their own material, or that of other users of the VSP.  The definition could cover the uploading of pirated material. The EP amendment proposed the removal of the word ‘created’ and the phrase ‘by one or more users’. While the former change seems to narrow the definition slightly, this latter change would remove some superfluity, as to upload one would have to be a user of the platform in its normal sense of the word (“user” is not a defined term).  The Council proposed changes would also narrow the definition, as it proposes limiting user-generated to that created by the user.  This seemingly excludes pirated material. While this seems to have some logic, generate is not the same as create. This impact of this proposed narrowing may be slight because the focus of regulation is the sharing platform, which does not have to exclusively carry user-generated video.  Would the effect of this change be to exclude video-sharing sites the dealt primarily in pirated videos from the directive’s ambit?

What Rules Apply?

The rules are found in Article 28a, with Article 28b dealing with questions about group companies and attribution of responsibility in that context.  It seems that the intention is that only the rules in this section should apply to VSPs and not the provisions in the directive generally, though the position is not entirely clear – particularly as regards advertising rules.

The Commission proposal required Member /states to put an obligation on VSP providers to take ‘appropriate measures’ to protect two groups of people from two groups of harms:

-          minors as regards impairment of physical, mental or moral development; and

-          all citizens (but not non-citizens – the Council suggested changing this to ‘general public’) from content containing incitement to violence or hatred in respect of certain protected characteristics (sex, race, colour, religion, descent, national or ethnic origin).

The original proposal contained a second paragraph the determined the sorts of measures that could be required by producing an exhaustive list, including terms of use, age verification and ratings and flagging systems.  A third paragraph specified that Member States were to ‘encourage’ co-regulation with the appropriateness of the measures being assessed by the national independent regulatory authority.  Significantly, Member States were precluded from imposing stricter measures, save with respect to illegal content. These conditions were expressed to be without prejudice to Articles 14 and 15 of the e-Commerce directive and to respect the conditions set down by EU law including those in the those provisions. Another theme here is the desirability of co-regulation and reliance on codes of conduct, including Union-level codes of conduct.  Another question relates to the respective roles of the NRAs, the contact committee (already established under the existing directive) and ERGA, a new body set up to provide advice.  The detail on these points lies outside the scope of this note.

Both the Council and the European Parliament have put forward amendments, the Council’s broadly tended to increase Member State’s freedom of action, the European Parliament’s emphasising freedom of expression.  Both sets of amendments raise questions about the applicability of the rules to commercial communications rules or the general commercial communication rules to VSPs.

The major point to note is the rejection of the Council of the maximum harmonisation approach – changing the Commission’s exclusive list into an indicative list and paragraph 5 now states that Member States may take more detailed or stricter measures.  It seems unlikely that the Council would accept the proposed limitation on Member State freedom – especially as it borders areas close to the core of State competence – the determination of criminal law and penalties. In a similar vein, co-regulation is to refer to the sorts of measures VSPs are to use in paragraph 2 and not the obligation to protect in paragraph 1, and the requirement to assess the appropriateness of measures entrusted to the NRA is linked to the measures taken by the VSPs to comply with the obligations imposed under para 1, not the obligations in para 1 itself.  The Council also put forward the suggestion that proportionality should take into account the size of the VSP as well as the harm that provider has caused – though presumably this should not be read as a justification for a VSP not applying measures at all.

The Council also extended the scope of the areas in which VSPs will be required to take measures- in essence linking these obligations with obligations found elsewhere in Union law – so the Combatting Terrorism Directive (EU 2017/541), child pornography as understood in Directive 2011/93/EU and racism/xenophobia as found in Framework Decision 2008/913/JHA.  In general, both the Council and the Parliament proposed extending the protected characteristics for hate crimes. In this context it should be noted that the non-discrimination provision in Article 21 of the Charter contains a list of protected characteristics and, if coherence with other elements of the law is a driver, it would make sense to match that in this provision.  The Council’s list refers back to matters which are criminalised as a requirement of EU law, but it is not expressly so limited.  If the key concern is that the public is to be protected from content the dissemination which constitutes an activity which is a criminal offence under the EU law (by reference to the relevant legal instruments), this leaves the question of where this leaves Member States with regard to speech that is criminal by reference to domestic law but not EU law derived, or even speech that is objectionable but not criminal under national law.  It is notable that there is no reference to copyright infringement (which may have fallen within the catch-all phrase found in the initial Commission draft, ‘illegal content’).

The proposals of the Council and the Parliament aim to bring commercial communications within scope.  The obligations in relations to the harms are extended to include harms caused by commercial communications and the general obligations found in Art 9(1) are to be complied with too (See Art 28(a)(1)(1a)), though a distinction is made between arrangements made by the VSPs as opposed to communications  arranged by third parties.  The rules in 9(1) deal with the identifiability of advertising as being such, as well as contain some content rules (eg respect for human dignity).  It would seem that the ability to set stricter rules could come into play here too.  The European Parliament takes a broader view as to the rules to be applied, suggesting that Articles 9 and 10 should be complied with.  Article 9(2) concerns the rules relating to “unhealthy food” and the development of codes of conduct in relation to the marketing of alcoholic beverages to children.  Article 10 concerns rules relating to sponsorship, but not product placement.  On this basis it seems that some parts of the general framing will bleed into the specific video-sharing section – the question to be resolved is how much – and how much control VSPs can be expected to have over third party content. If the point is that the requirement to be transparent about advertising forms part of the VSP terms of use, how strongly would VSP providers be expected to monitor and enforce compliance?  Further, how far would the inclusion of some provisions on advertising mean that other EU or national rules are excluded – presumably a similar approach to the question of the harmonised field as taken in de Agostini could be envisaged here.

In terms of measures to be selected, there is a question as to who much freedom VSPs would have – and in particular whether such providers would be allowed to filter/monitor all content ‘to be on the safe side’ - with an impact on all users as well as the risk of over-control.  The users’ privacy and freedom of expression are in issue, but the VSP providers presumably have some choice about how they run their business. The argument that Article 15 e-Commerce Directive precludes general monitoring does not fit well here as Article 15 is directed to the Member State; the issue refers to the VSP providers’ choice, and not what there are required to do by the State. The e-Privacy Directive does not necessarily cover this point either.  As a fall back, the balance will presumably be found through the proportionality assessment to be carried out by the NRA under Article 28a(2).

Article 28b deals with establishment of jurisdiction for the purposes of this section of the directive.  A different approach from that set out with regard to AVMS is to be adopted – that found in the e-Commerce Directive.  This emphasises the split between AVMS and the VSPs – highlighting the add-on nature of the VSP provisions to the AVMSD.  Further provisions deal with the position where there is not an establishment in the EU.  Article 28b(2) ensures that the rules in Art 28a(1) do not bite on the wrong company (e.g. the advertising unit of a company group is established in the territory, but the primary service is run from the States – a model adopted by e.g. Google and Facebook).  This has been amended by the Council to ensure broad coverage so that where a non-EU VSP provider is part of a group and any other company in the same group is established in the territory of a Member State, that Member State may have jurisdiction, with hierarchy provisions trying to deal with possible multiple claims to jurisdiction.  There are no equivalent provisions to the anti-circumvention provisions applicable to AVMS, so it is unclear how disagreements between member States as to the appropriate level and intensity of regulation are to be resolved.

Photo credit: Thaivisa