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On 8/03/2015 1:47 am, Rishabh Dara wrote:<br>
<blockquote
cite="mid:CAF6VOooW6+OGGgBvkvRdD+DSqdBpMbK14MJYv+eo9po_qzEG+w@mail.gmail.com"
type="cite">
<div dir="ltr">I congratulate you on the excellent work done on
the principles so far. I have the following comments on the
principles:
<div><br>
</div>
<div><b><u>Comment 1</u></b></div>
<div>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."</div>
<div><br>
</div>
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.</div>
</blockquote>
<br>
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?<br>
<br>
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<div dir="ltr">As a safeguard, I would also suggest retaining the
following principle from Alternative Version (dated 2 February
2015) which states that:
<div>
<div>
<div>"Intermediaries should not legally be placed in the
position of making substantive evaluation of the legality
of content."</div>
</div>
</div>
</div>
</blockquote>
<br>
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?<br>
<br>
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<div dir="ltr">
<div>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?</div>
</div>
</blockquote>
<br>
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.<br>
<br>
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<div dir="ltr">
<div>
<div>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.</div>
</div>
</div>
</blockquote>
<br>
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).<br>
<br>
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<div dir="ltr">
<div>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."
<div>
<div><br>
</div>
<div>I feel that the intermediary should be allowed to
charge the complainant only if the complaint proves to be
"frivolous".</div>
</div>
</div>
</div>
</blockquote>
<br>
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.<br>
<br>
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<div dir="ltr">
<div>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.</div>
</div>
</blockquote>
<br>
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.<br>
<br>
<pre class="moz-signature" cols="72">--
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Senior Global Policy Analyst
Electronic Frontier Foundation
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