[Manila Principles] Manila Principles draft 0.96 released

Jillian York jillian at eff.org
Fri Feb 27 01:24:59 PST 2015

Hi all,

Congratulations on all your efforts here - I think this is an excellent

I haven't been involved throughout, so looking at these for the first
time in months, I'm pleased at the structure and simplicity.

My only major note is with respect to III c. and d.:

c.	Governments must make available to both content providers and
intermediaries the right to appeal orders for content restriction.
d.	Intermediaries should provide internal mechanisms for review of
decisions to restrict content for terms of service violation.

Is there a reason that we're not explicitly calling for intermediaries
to provide an appeals system to content providers? We did so in the
attached paper, and it's been a major part of EFF's advocacy with
companies over the past few years. The impact of a lack of appeals
system is not merely felt by content providers; every single day in my
work, I escalate complaints to companies about TOS takedowns, and afaik,
Facebook is the only one with a proper appeals system. Companies are
abusing the attention of civil society by putting us in a position of
intermediary for appeals, rather than merely providing their own
systems. Anyway: I also concede the possibility that I've misunderstood
a bit of this section :)

Another small note is that I think this requires, in the document itself
and not the background paper, a defining of terms. I'm well-versed in
this area, and "content provider" still threw me off at first glance;
given at this point how many "uninitiated" colleagues read the 13
Principles, I would assume wider reading than you are and include a
short definition of terms.

(small note: there's a typo in II. c. - complaint, not compliant)


On 2/21/15 2:10 AM, Jeremy Malcolm wrote:
> 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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*Jillian C. York* Director for International Freedom of Expression
Electronic Frontier Foundation | https://eff.org .de: +493021782883 .us:
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