[Manila Principles] Manila Principles draft 0.96 released

[Jeremy Malcolm]

On 8/03/2015 1:47 am, Rishabh Dara wrote:
> 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.

There are strong views on both sides of this issue.  Thanks for trying
to propose a compromise.  We are about to push out 0.97, and I'll
represent this in the draft with square brackets.  It would be helpful
to have others' views. Is "preferably only", as suggested by Rishabh,
something that others can live with?

> 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."

This is consistent with the current version but I'm having trouble
finding where that text was before.  Can you please send or point me to
the version where you found that?

> 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?

It could, sure.  Those who support this part of the principles don't
take that risk that as a good enough reason to authorize an intermediary
to treat foreign court orders as binding worldwide.  I would like to
hear more of the views of others before we step back from this.

> 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.

Although the Manila Principles don't do this, the Internet &
Jurisdiction project (which we cite in our background paper, and from
which we will be hearing a presentation at our meeting) does suggest
establishing a "dialogue mechanism" in the case where a foreign court
makes an order and an intermediary refuses to comply with it.  Such a
dialogue mechanism would not be inconsistent with the principles (though
for the intermediary to act on its advice, absent a terms of service
infringement or a local court order, would be).

> 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".

In a notice and notice regime, there are costs for handling even for
non-frivolous complaints, and charging at least some of these back to
the complainant is a good correction mechanism for the over-supply of
automated notices. As a compromise, an alternative might be to add "at a
rate provided by law".  That allows for the government to allocate part
of the cost to the intermediary and part to the complainant, and allows
for differentiation based on local costs, as you suggest, and also based
on scale of the intermediary.  As an example, in New Zealand
rightsholders pay $25 per notice - though the actual costs to ISPs are
actually estimated to be higher.

> 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.

No, the court would have to decide that.  In absence of any other
requirement on the ISP, they would only block it locally.  If the
principle isn't clear on that, we'll make sure the background paper
clarifies it.  Thanks for pointing that out.

-- 
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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