[Manila Principles] Manila Principles draft 0.96 released
Jeremy Malcolm
jmalcolm at eff.org
Fri Feb 20 17:10:59 PST 2015
Please find attached a new draft, 0.96, of the Manila Principles, for
your further comment. For now, to keep things manageable and to ensure
that comments are reviewed widely, we are asking that you provide your
further comments via this list (but if you do want to be able to comment
on a Google Docs version, let us know).
Most of the small changes have simply been accepted because nobody had
objected to them, and they seem objectively reasonable and consistent
with the rest of the document. These are not all listed here, but there
is a record of them in comparing the marked up text of version 0.9 which
remains online. A couple of the more notable examples only include:
*
It was pointed out that we should be careful to avoid allowing
intermediaries to restrict content based on their own terms of
service without clearly differentiating between access providers who
are mere conduits, and content hosts. In the new text of principle
I(d) the ability to restrict content based on terms of service is
limited to hosts.
*
It was suggested that we propose that new intermediary liability
rules should require renewal after a five year period, following an
impact assessment—you can see this text at the very end of the document.
A few of the more extensive changes, although not objectionable in
themselves, would increase the length and complexity of the principles
noticeably, and so for some of these, the suggestion is made that rather
than being included in the principles, they be included in the part of
the background paper that is linked to the principles. These include:
*
The introductory paragraph, “The networks that constitute the
Internet are able to interoperate thanks to an architecture that
requires intermediaries to exchange information automatically,
without discriminating between different messages. Every regulatory
burden on intermediaries increases their costs, making the Internet
less accessible to poor people in industrialized countries and most
people in the developing world.” Also, someone commented that having
this paragraph appear so prominently in the principles seems to be
giving undue deference to the limitation of regulatory burdens on
intermediaries.
*
The comment, “There is a trend towards finding the intermediary was
actually the primary actor (see eg the cases of Optus TV Now in
Australia; Aereo in the US), making any intermediary protections
moot in those cases. Should we have a principle addressing the
trend?” Rather than having a principle addressing this, we do
address it in the background paper, and can ensure that we do so
more thoroughly as we revise it.
*
The comment, “Shouldn't we come up with proposed standardized
content restriction policies?” This is a good idea! But it exceeds
the scope of this part of the project.
*
A reference was made to the OTI report on transparency reports at
http://oti.newamerica.net/blogposts/2014/this_week_transparency_reporting_for_beginners_in_san_francisco_and_austin-104618,
which we will ensure we integrate into the background paper.
*
The suggestion was given to define “least restrictive technical
means”. This too is something that can probably be best done in the
background paper.
Some changes that people had suggested were disputed by others, and a
judgment call has had to be made about whether to include these or not.
Of course, that judgment remains open for discussion by the broader
group. These include:
*
In “Any rules governing intermediary liability must be laid down in
statute, which must be relevant, accessible, unambiguous and meet
other human rights standards”, there was a fairly extensive
discussion about the inclusion of “other”, with one person proposing
the addition, but two others opposing it. We are proposing to omit it.
*
Whether search engines are intermediaries. We are proposing that
they are, in line with the UNESCO report and other documents that we
have cited in the background paper.
*
Whether we should talk about counter-notice processes. This
implicitly acknowledges that the legitimacy of a regime that allows
content to be removed on the mere issuance of a notice. So the
current draft does not talk about a “counter-notice” process in
those terms, but does talk about the need for mechanisms of appeal
(against content restriction orders) and review (against terms of
service removals).
Some parts of the text were generally controversial, but a specific
replacement text was not agreed. These include the following:
*
That “intermediaries should be allowed to charge for the time and
expense associated with processing legal requests issued by private
parties”, to which we have added, “on a cost recovery basis”. In my
own personal opinion, this is a paragraph that could be deleted if
it continues to be too controversial, because it is not a core
point. What do others think?
*
What should we say—if anything—about penalties against
intermediaries being “proportionate”. The current text reads,
“Penalties imposed by governments, and damages awarded to
complainants or content providers, against intermediaries for any
act or omission related to third-party content restriction must be
reasonable and proportionate, and in particular criminal liability
must not be imposed.” Again, perhaps, if this paragraph remains
controversial, we could just delete it.
There was division about whether to divide the principles into two
sections or not. Different opinions have been expressed on this, with
Prof K S Park making the case against dividing it. We therefore no
longer have a rough consensus to split the document. So for now, we have
returned the document to a single list of principles. But to make it
easier to see how the principles are applied in particular liability
regimes, we will write a new non-normative FAQ to accompany the
principles. This is the current proposal, but it can be further discussed.
Finally, there are some more philosophical differences that have
emerged, which we have to make a collective judgment about. These
include some areas on which there is unlikely to be a full consensus at
the end of the day, but we have to aim to achieve the broadest consensus
that we can:
*
The concept of a “judicial or equivalent order”. Some expressed
reluctance to settle for anything other than a court order, whereas
others point out (per Rishabh Dara) that "we also need to recognise
the need for an institutionalised redressal mechanism that is cheap
and fast for the genuinely aggrieved.” The text as now presented to
require a judicial order only, as an ideal principle. But this
remains open for discussion, and at a minimum, we will acknowledge
in the background paper that there may be practical difficulties in
reaching this aspirational level and that the use of an independent
administrative process may be the only pragmatic alternative in some
cases.
*
There is a division between those who think that intermediaries
should never be able to manage content on their networks without
oversight from a public authority, and those who think that they
should be able to. For example, Martin Husovec wrote “I come back to
my comments on the background paper, there you also mention ToS
based take-downs; does this mean that you suggest that if copyright
violations are prohibited, that its OK to go without the court
decision, as long as transparency, etc. is warranted?” As it stands,
the principles do indeed allow an intermediary to act on their own
terms of service, provided that they comply with requirements of
transparency, accountability and procedural fairness.
*
Conversely, some have the view that the principles are actually too
limiting of intermediaries acting without a court order, and suggest
that we should not be so stringent in requiring that. So for example
the case was made by the Web conference Annemarie Bridy said that
notice and takedown remained appropriate in some cases. In its
current format, we are strongly against notice and takedown, in
favour of notice and notice, or notice and judicial takedown. So
this is also a point of contention. Have we struck the right balance?
*
The suggestion to add “Intermediary liability policies should be
created only after evidence based processes have demonstrated
widespread persistent harms that cannot be effectively addressed in
other ways in the specific jurisdiction in which the policies will
be developed. ” conflicts with our starting point that there should
be a default policy excluding intermediaries from liability for
third-party content. One comment was “not sure about this”, so this
text has not been integrated, until a better case can be made for it.
*
On the paragraph “Governments must not impose an obligation on
intermediaries to maintain the ability to de-anonymize users or
identify past user activities, such as by logging information
necessary for such purposes”, it was commented that disclosure of
user identity can be required by the human rights of victims. Do we
want to avoid talking about data retention in this document? Perhaps
this is another point that is less core to the document, that we
could take out if it is causing too much division.
I hope you find this commentary useful. This summary does not explain
how each and every comment was taken into account, so if you submitted a
comment and cannot easily see how or whether it is reflected in the new
draft, please write to us for clarification. Note that the background
paper has not yet been updated to accord with the changes to the principles.
A final note: registration for the Manila Principles meeting closes on
22 February, which is this Sunday. If you haven't registered, please do
so now! You can do so using this form:
https://docs.google.com/forms/d/1fP8G1H1xCK0jxkSetI1QtQ7SiCtP508N2xrhwf6RXp0/viewform
--
Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
https://eff.org
jmalcolm at eff.org
Tel: 415.436.9333 ext 161
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