[Manila Principles] Manila Principles draft 0.98 and background paper released

Raegan MacDonald raegan at accessnow.org
Sat Mar 21 02:44:26 PDT 2015

Dear All,

Ahead of tomorrow’s meeting on the Manila principles, Access would like to
share some comments on the draft Principles and the background paper.

First of all, we would like to acknowledge the hard work that all the
participants have put into the process of crafting these principles. Both
the background documents and the proposed principles reflect input from
many stakeholders.

We broadly support principles III to V.  However, from our perspective,
significant changes are required for the first principle, and principles II
and VI need further refining. The definitions would also need to be
clarified and strengthened.

Specifically, on *principle *I, we strongly oppose point I.e authorising
intermediaries to restrict content that “contravenes their own terms of
service”. This approach could lead to the removal, blocking, filtering or
taking down of lawful content by intermediaries 1. through circumvention of
the rule of law and 2. circumvention of their own rules. While reducing the
liability of intermediaries across the board is a valiant goal, allowing
them a carte blanche to do literally whatever they want will only have
negative consequences for free speech online. Furthermore, as acknowledged
in the background paper, allowing intermediaries such freedom exposes them
to pressure from governments who are increasingly using them to bypass
regional and international human rights law to censor content. This is
frequently the case in the EU with parallel “self-regulatory” initiatives
like Clean IT <http://www.cleanitproject.eu/> and the CEO coalition
to make the internet a better place for kids.

On principle II, point I.c. raises serious concerns regarding the right to
privacy and the rights to anonymous and pseudonymous expression.  Any
obligation for intermediaries to identify content providers put these
rights at risk and would have a chilling effect on freedom of expression.
These rights are also necessary to protect the digital and physical
security of users at risk around the world. Intermediaries should not be
liable for the identification of the content provider if the identification
would lead to a restriction of the right to privacy or the establishment of
policies that undermine the ability to use platforms anonymously or
pseudonymously, such as real-name policies.

In section VI.a, we do not understand the use of the phrase “user and
non-user citizens”. “User” is sufficiently inclusive. When crafting
something of this nature which is intended to be cross-jurisdictional, we
should refrain from using a term that ties individuals to a state.

Finally, while we have no opposition per se on principle VI, in order to
comprehensively address this issue, we suggest adding an explicit section
on the need to reform Terms of service agreements of intermediaries. This
would be consistent with the framing of the principles, which acknowledge
that the private sector mediates our online communication. We would be
remiss to then only ask the public sector to reform its practices.

All the best -- and looking forward to the event tomorrow!


On 16 March 2015 at 23:31, Jeremy Malcolm <jmalcolm at eff.org> wrote:

> As we approach the Manila Principles meeting this weekend, please find
> attached version 0.98 of the principles, which attempts to integrate all
> of the latest suggestions.
> Changes from the previous version are relatively minor and are shown
> with revision marks.  In a few instances where there was disagreement
> about proposed changes, the text has been left as-is from the previous
> draft.  There are also two places where square brackets remain in the
> latest draft: I.b and III.f.  In the current draft we are proposing the
> hybrid term "user content provider" to refer to a user whose speech is
> facilitated by an intermediary, but remain open to better suggestions.
> Also attached is the background paper that has now been updated to
> incorporate the comments that some of you made, and has also been
> brought into sync with the 0.98 version of the principles. The
> background paper will be published on the website as a PDF.  It contains
> background information, references, definitions and fuller explanations
> of each principle.  We hope that the definitions will also be included
> as tooltips that appear when you hover over defined terms on the website.
> As the background paper is over 50 pages long, it is not fair that we
> ask everyone to give their approval to this document.  Therefore the
> preface of the background paper makes it clear that although it has been
> drafted in consultation with the larger group, the steering committee
> alone takes responsibility for it.  The same will apply to the separate
> FAQ and jurisdictional analysis documents.  Although these are intended
> to be consistent with the Principles, the only normative document that
> we will present for approval in Manila are the principles themselves.
> We are still accepting comments and suggestions on the 0.98 draft, but
> obviously at this late stage, it would be helpful if these were kept
> narrow and did not introduce any brand new ideas.  I'm not re-posting
> the Google Docs links here, in order to encourage you to make your
> comments through this list, but the links previously shared do remain
> available for your use.
> For those who will be in Manila, you will each receive a copy of the
> 0.99 draft for discussion, and the approved 1.0 version of the Manila
> Principles will then be released at a workshop at 3:30pm on Tuesday, 24
> March 2015 in the Ruby A room at RightsCon.
> --
> 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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*Raegan MacDonald*
European Policy Manager
Access | accessnow.org <https://www.AccessNow.org/>

mobile: +32 486 301 096
office: +32 2 274 25 74
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*Join the Access team - *we're hiring <https://www.accessnow.org/about/jobs>!

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