[Manila Principles] Manila Principles draft 0.96 released

Sun Mar 8 01:47:41 PST 2015

Hi Jyoti and Jeremy,

I congratulate you on the excellent work done on the principles so far. I
have the following comments on the principles:

*Comment 1*
This is with reference to the principle in Version 0.96 (dated 20 February
2015) which states that "Intermediaries may only be compelled to restrict
content by a judicial order issued in a jurisdiction to which the
intermediary is subject."

I understand that the primary objective of this principle is to prevent
intermediaries from becoming gatekeepers that don the hat of the judiciary
and subjectively determine the legality of any third party content.
However, I fear that framing the principle as it presently reads
(especially the use of the word "only") might undermine other institutional
mechanisms for regulation/removal/restriction of content that do not
involve the judiciary.

I would suggest using the phrase "preferably only" instead of "only" to
make clear that judiciary is our preference as the ideal place to make
legal determination, but adoption of other mechanisms of regulation/removal
will not necessarily violate the principles.

The use of the phrase "preferably only" will not create a false impression
that adoption of say a quazi-judicial administrative body, or an objective
test for notice and takedown, or any other innovative institutional
mechanism for regulation/restriction of content will be in violation of the
Manila principles. For example, an intermediary is not required to make
subjective legal determination in a notice and takedown system wherein a
cache or an information location tool is compelled to remove/update its
records on the basis of a private notice/complaint stipulating that the
source that it caches or indexes has been updated/modified/removed.

In the absence of an editorial check point, as in traditional mediums,
reliance only on the judiciary is bound to create undue burden on an
already over-burdened, slow and costly judiciary in a jurisdiction such as
India. The principles should aim to minimise the burden on the judiciary
and not preclude other innovative institutional mechanisms that different
countries may want to experiment with. The principles should also encourage
community regulation of content for hosts and creation of industry
standards for refreshing and reloading content for caches and information
location tools to reduce the burden on the judiciary.

As a safeguard, I would also suggest retaining the following principle from
Alternative Version (dated 2 February 2015) which states that:
"Intermediaries should not legally be placed in the position of making
substantive evaluation of the legality of content."

Such a principle will ensure that any other institutional mechanisms for
restriction of content do not make the intermediary a gatekeeper for third
party content.

*Comment 2*
I would also like to fully understand the implications of the same
principle with respect to jurisdiction i.e. that the intermediary should
only comply with an order from a court that has jurisdiction over the
intermediary. The "Q&A" document offers some explanation "The first thing
the host should consider is the format of the removal request—is the notice
an order from a court with jurisdiction over the host?  If not, the host
should consider doing nothing."

Jurisdiction is a tricky subject, but does this principle create a burden
on the complainant to approach only that court to which intermediary claims
jurisdiction? For example, does the principle encourage an intermediary
hosted in America to ignore a judicial order coming India; or suggest that
a person from India must file a court case in America to have content
removed from a host in America? Wouldn't this create a situation where the
national courts would just require the blocking of the content at the ISP
level if their orders are ignored by the intermediary?

I believe that, in the principles, intermediaries should be encouraged (not
compelled) to comply with orders coming from any judiciary regardless of
whether it has jurisdiction over the intermediary.

*Comment 3*
With reference to the principle that states that "Intermediaries should be
allowed to charge private party complainants on a cost recovery basis for
the time and expense associated with processing their legal requests."

I feel that the intermediary should be allowed to charge the complainant
only if the complaint proves to be "frivolous". Otherwise, a legal
provision based on this principle may be misused by mischievous
intermediaries to make money. For example, an intermediary may hire people
to upload unlawful content on purpose to extract money from complainants.
Also, I suspect that costs imposed by intermediaries for processing
complaints may create a chilling effect on genuine complaints.
Additionally, since legal costs vary in different jurisdictions - a person
from India can not be reasonably expected to pay for an expensive lawyer's
fee in America.

*Comment 4*
The principles state that any removal should minimise extent of restriction
in terms of geography and duration. From what I understand, this
determination of what is minimal (at least in terms of geography) would be
made by the intermediary after an order is received from the judiciary of a
particular country. For example, after receiving a court order from Italy
to remove fascist content, an intermediary would subsequently determine
whether the removal should be specific to Italy or apply to all
jurisdictions.

While I agree with the intention of the principle, such a jurisdiction-wise
determination of what is minimal would place the intermediary in a position
that requires it to subjectively determine the legality of content in over
100 jurisdictions. While I am not suggesting that the principle should be
changed, I feel that some level of additional guidance can be provided (in
a lower level of abstraction of the principles, maybe as a best case
practice) regarding how this situation should be dealt with so that
intermediaries do not over-comply and err on the side of caution.

Regards,
Rishabh Dara
IIM Ahmedabad

On 28 February 2015 at 07:38, Jeremy Malcolm <jmalcolm at eff.org> wrote:

> On 27/02/2015 1:24 am, Jillian York wrote:
> > 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.
>
> Not except that an "appeal" connotes a judicial process and a "review"
> connotes a private one.  Thanks for pointing out that we need to improve
> the language (or, at least, flesh out the intent in the background
> paper) so that we cover this important point adequately.
>
> > 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;
>
> Yeah that is a thorny one, because in the earlier draft we had a few
> different terms that we used to describe the same thing and the latest
> draft standardizes on "content provider".  But that does, for sure,
> suggest eg. Sony Music, which absolutely isn't the intended meaning.
>
> What can we call a user who uploads content that is better than "content
> provider"?
>
> And would hyperlinking (the first usage of) defined terms to the
> definitions section of the background paper be adequate?  (From a design
> side, we are limited in how much we can include on the page.)  Or adding
> floating tooltip-like definitions?
>
> > (small note: there's a typo in II. c. - complaint, not compliant)
>
> No it means "compliant" ie. "those that comply" (with the criteria set
> out in II. b.).  But there has, separately, been a comment that we may
> need to have more criteria here, to avoid the intermediary forwarding
> notices that contain false information.  OTOH adding more requirements
> on intermediaries to review the notices that they forward would in
> itself be a burden.
>
> Your comments are much appreciated anyway, and I've made a note to come
> back to them here:
>
>
> https://docs.google.com/document/d/1xJ-jjaaSGN7ZQfjuGftgwnWaPeK5JBZeaVA3-oiNAk4/edit#heading=h.30j0zll
>
> --
> 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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