[Manila Principles] OSCE Communique on Intermediaries

[Christina Angelopoulos]

Dear Tim,

Apologies for the late reply. That is indeed excellent news and a great initiative on the part of the OSCE's Media Freedom Office. I agree with Jeremy that the draft recommendations look excellent. I did want to signal that I especially appreciate the second and fifth Recs with regard to both the emphasis on the proportionality of take-down-related provisions and the need to avoid a private ordering of the internet. 

So, fwiw, both of these issues are of particular importance in the EU context (the jurisdiction with which I’m most familiar myself). It is indicative, for example, that the CJEU’s 2014 Telekabel case both moved a little bit towards encumbering intermediaries with fundamental rights obligations that probably deserve better prior determination by state authorities, as well as delving further into the interpretation of the demands of proportionality. 

With this in mind, although I realise of course that recommendations are intended to be brief, I don’t suppose there’d be any room for greater precision in this regard? Proportionality is obviously necessary, but this is something that has been repeated many times before with little indication of what it entails. Perhaps something more could be said on that? For example, the Manila Principles suggest that take-down requests should include internet identifiers and an appropriate description of the content. Alternatively, perhaps something could be said about the inappropriateness of the particularly problematic ideas, such as e.g. the current push towards expanding take-down to include future content?

Having said all this, obviously I do understand that the medium of recommendations limits the scope of precision!

I hope this helps.

Kind regards,

Christina



********************************** 
Christina Angelopoulos
Information Law and Policy Centre, Institute of Advanced Legal Studies
School of Advanced Study, University of London
17 Russell Square, London WC1B 5DR
Tel. +44 20 78625827
E-mail: c.angelopoulos at sas.ac.uk
Web-site: ials.sas.ac.uk



-----Original Message-----
From: ManilaPrinciples [mailto:manilaprinciples-bounces+c.angelopoulos=sas.ac.uk at eff.org] On Behalf Of Tim Karr
Sent: 19 January 2016 12:39
To: 'manilaprinciples' <manilaprinciples at eff.org>
Subject: [Manila Principles] OSCE Communique on Intermediaries

Hello all,

For the past three years I have been participating with the OSCE's Media Freedom Office on an Open Journalism initiative, the goal of which is to advise the organization's 57 member states on best practices with regards to digital rights. Over the last year we have focused on the increasing influence of intermediaries. These discussions came to a head in December during our meeting in Vienna, where I presented the Manila Principles at a general session. There was a great deal of interest in helping our work. This morning I received a draft of the communique that the office will present to the 57 member delegations later this month. As you can see the Principles are a part of the draft. As we hammer out a final version, I welcome any input any of you might have.

Here are the draft recommendations. Please don't share beyond the members of this list:   

•	Public authorities should protect media freedom and the free dissemination of information in all the facets and areas of the online world. The important presence and role of intermediaries should not endanger the openness, diversity and transparency of Internet content distribution and access.

•	Excessive and disproportionate provisions regarding content takedown and intermediaries’ liability create a clear risk of transferring regulatory powers into private actors and should be avoided. Already existing multi-stakeholder debates and initiatives such as the Manila Principles(1) should be given due consideration in this area.

•	The legitimate need to protect privacy and other human rights should not undermine the prevailing role of freedom of the media and the right to seek, receive and impart information of public interest as a basic condition for democracy and political participation.

•	Making private intermediaries more transparent and accountable is a legitimate aim to be pursued by participating States through appropriate means. However, this must not lead to an excessive control by public authorities over online content. 

•	Decisions addressed to intermediaries establishing restrictions or ordering the takedown of Internet content should be adopted according to the law, through a fair process and with full respect to the principles of necessity, proportionality and judicial review. 

Best regards,

Tim

=  =  =  =  =
Timothy Karr
Senior Director of Strategy
Free Press
www.freepress.net
201.533.8838

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