[Manila Principles] Three areas of divergence on the Manila Principles for your comment

[Jeremy Malcolm]

Dear all,

Thanks again for agreeing to join the community that is developing the
Manila Principles on intermediary liability.  There are 75 of us on this
list covering all world regions, and since December you have contributed
dozens of comments on the draft principles
<https://docs.google.com/document/d/1kAkqgt3cRb65d8ik6vWYgpk6DYpP8ABA43ljgDiGOf8/edit?pli=1#>
and the background paper
<https://docs.google.com/document/d/1QfxH1jX_ewfB8TV5iQBSloyttjwaMP47nwblMzN4Hg4/edit#heading=h.tqnj2pprtelu>,
with more comments continuing to flow in.  If you haven't commented yet,
please take the time to see what others have been saying.

Since posting a summary of our December webconference there has been no
traffic on this list, while we have been quietly receiving comments via
the Google docs and a few by email off-list.  This comment period lasts
until 15 February, after which we will integrate the comments into
another draft.  Until then, we won't be posting new versions of the
draft texts.

But meanwhile, it is useful to kick this list into life to deal with
some of the major issues that we are hearing.  These are observations or
suggestions that can't be dealt with by simple amendments to the text,
because they are of a more structural or strategic nature.  For these,
we need to discuss and respond to them in a more extended format, such
as on this mailing list (and/or on a phone conference if requested).

So far there are at least three such issues, which I'm going to try to
outline here (but this may not do full justice to them, so anyone who
shares these thoughts can follow up to explain them better):

 1. Currently the main Manila Principles document consists of a short
    few paragraphs of introduction, followed by eight principles, each
    of which has between 5 and 8 points under it.  They are linear
    rather than in the form of a decision tree such as "If you are
    dealing with this type of content, then A, otherwise B".  As such,
    some of the principles are most applicable under a "notice and
    takedown" regime, rather than the "notice and notice" regime that we
    advocate should usually apply (in principle I point 4, and in the
    background paper).  For example, principle IV "When content is
    legitimately restricted, it should be done in the least restrictive
    manner possible".

    The suggestion is that we should include a separate section in the
    main Manila Principles document that more explicitly explains the
    hierarchy of intermediary liability regimes that we are
    recommending.  Do people think that this would be valuable, or is it
    better to keep the document how it is?

 2. Another general comment that has been expressed from one source is
    that the main Manila Principles is too ambitious, in that it is
    impossible to deal with so many complex issues in a short document,
    and that too much work is involved to finish it by March.  But short
    of abandoning the exercise, it is suggested that we could hone in on
    some core principles such as that legitimate should be kept
    available at all times, that requests from LEA and from civil
    parties should be clearly distinguished, that only unmistakeably
    unlawful content should be removed unilaterally (and generally by
    the uploader rather than the provider, except in emergencies), and
    that this should be by disabling access rather than removing the
    content.

    I'm not sure that we can't accommodate all of this by just honing
    the principles that we have, but what do you think?  Should we
    remove some topics altogether so that we can make the principles
    significantly simpler?  Or is it OK to keep all of the topics that
    we have now, but just endeavour to reduce duplication and present
    them in a less messy way?

 3. A third comment deals with negotiating the delicate balance between
    being too ambitious and being too conservative in how to deal with
    content takedown.  In our unreleased zero draft we were much more
    accommodating of the status quo such as notice and takedown, but
    feedback received on the zero draft pushed us towards raising the
    bar for this release to make the requirements of content restriction
    more stringent.  This has resulted in some "fudging" of the current
    text, for example where we talk about requiring a "judicial or
    equivalent order" to authorise content takedown.  Do you have any
    strong views about whether we have drawn the line correctly and
    clearly enough?  Should "notice and takedown" ever be appropriate,
    outside of emergency situations defined by law?


Please let us know what you think about these three general comments.
You can write back to this list (preferred, so that we have a record of
the discussion that we can all refer back to), or else just to the
project's steering committee (liability at cis-india.org).

In the next few days, this list will be springing to life with some more
emails about a draft website of the project, and about the agenda and
registrations for the Manila Principles meeting on March 22-23, 2015. 
If you have questions or comments about these or anything else, we also
look forward to hearing from you.

-- 
Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
https://eff.org
jmalcolm at eff.org

Tel: 415.436.9333 ext 161

:: Defending Your Rights in the Digital World ::

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