[Manila Principles] Manila Principles draft 0.98 and background paper released
katitza at eff.org
Sat Mar 21 18:47:32 PDT 2015
Tamir Israel from CIPPIC/Canada chime in and shared the following background information about Canadian law that might be useful for this specific point:
Begin forwarded message:
Date: March 22, 2015 at 9:18:51 AM GMT+8
From: Tamir Israel <tisrael at cippic.ca>
To: Jeremy Malcolm <jmalcolm at eff.org>
Cc: Katitza Rodriguez <katitza at eff.org>, Danny O'Brien <danny at eff.org>
Subject: Re: [Manila Principles] Manila Principles draft 0.98 and background paper released
here's the provisions we have in Canada, they *exclude* any obligation to add identification infrastructure or change retention rates). 41.26(1)(a) is the key:
Obligations related to notice
41.26 <> (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,
(a) as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and
(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.
Marginal note:Fees related to notices
(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.
Marginal note:Damages related to notices
(3) A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.
Marginal note:Regulations — change of amounts
(4) The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).
> On Mar 22, 2015, at 8:17 AM, Katitza Rodriguez <katitza at eff.org> wrote:
> Dear Reagan,
> Thanks for your note. Jumping onto my issue area:
>>> 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.
> This one is easy to fix. Canadians had to deal with it in their notice-to-notice regime:
> c. Intermediaries who host content may be required by law to respond to notices by either forwarding compliant requests for content restriction received from complainants, and content restriction orders received by governments, to the user content provider, or by notifying the sender why it is not possible to do so.
> c. Intermediaries who host content may be required by law to forward compliant requests for content restriction received from complainants, and content restriction orders received by governments, to the user content provider, but not to develop any new capacity to identify customers.
> From EFF perspective, we always need due process before disclosure of identity of anonymous speaker with the need to redress wrongs;
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> ManilaPrinciples at eff.org
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