EU Commission’s Attempts to Undermine the Hyperlink are a Solution in Search of Problem

What does the leaked draft on the European Commision’s Communication on Platforms reveal and what are its implications for Internet users worldwide?

As we reported yesterday, Politico has released a leaked draft of the European Commission’s (EC) Communication on Platforms that has serious legal implications for free expression and access to knowledge online.

The final proposals from this process – which will impact many different pieces of EU law – are going to be felt by Internet users around the world because, regardless of where you live, some of your favourite websites are impacted by EU laws.

Some of you will remember that OpenMedia and the SaveTheLink network mobilised thousands of Internet users late last year when the EC floated worrying proposals that threatened to censor and tax hyperlinks.

One suggestion included rules that would make websites liable for content submitted by users, including hyperlinks – meaning in order to avoid legal trouble websites would need to monitor, in real time, everything people do online and censor anything that might link to copyrighted material. This is sometimes referred to as ‘intermediary liability’. I know: a pretty boring name for a pretty scary idea.

The other problematic proposal is “ancillary copyright”  – a Link Tax that would require websites that use snippets of summary text to pay copyright royalty fees to huge publisher collection bureaucracies.

Sadly, yes, these are actual ideas being considered right now.

Now this latest leaked document does show that Commission has begun to acknowledge the fact that online platforms are tools that those of us outside of the legacy publishing industry actually find beneficial and useful. They note that platforms:

“facilitate unprecedented efficiency gains, invest comparatively heavily in research and development, and act as a magnet for innovation [...] offer the potential to enhance civil participation in society and democracy"

However, it is all the more insulting when the document, no doubt under the influence of publisher lobbyists, then goes on to use coded language to encourage new link tax and censorship legislation.

For example, our colleagues at EDRi have highlighted how the Commission deliberately use legal terms such as “making available” regarding websites that link to outside content (ie: all hyperlinks). If this language is adopted in legislation it could create exactly the type broad censorship we’ve been worried about since this process began.

To be clear, this censorship wouldn’t be done overtly by the state, but rather websites would be responsible for conducting the censorship for them.

So in the words of EDRi we’re looking at world where websites, platforms and apps may be forced to:

“monitor online activity, take action to remove any content that creates legal risks for them, and arbitrarily police content to “protect” unspecified and undefined “societal values” [...] Instead of accountability, we will have unaccountable censorship imposed by a system where, in the Commission’s own words, “information is filtered via algorithms, or manipulated through opaque moderation processes”.

If that weren’t bad enough, the Commission continues to suggest that there is a need for a new tax or fee on hyperlinks. They talk about a "sectorial approach", which means they’ll start by applying fees to online aggregators of links and move on from there.

I don’t know about you, but that doesn't make me feel better about the idea. If there is any doubt that someone within the Commission wishes to pursue this silly idea, look no further than their new ‘consultation’ on this link tax scheme specifically.

It’s understandable that legacy publishers would like to find a way to control the Web and force users and websites to pay them a new special fee.  After all, these media bureaucracies come from the broadcasting era.  

What is less acceptable is why the European Commission would buy into these ideas. Oh yeah, we’re talking about this guy:

I get it. Traditional publishers are having trouble adapting to the rise of user-driven aggregators and empowered citizen producers of content. Indeed the combination of automation and empowered users is ushering in dramatic changes society-wide.

I understand legacy publishers want to find a way to lasso some of the value users and online platforms produce everyday, but it is simply not legitimate for decision makers to buy into schemes that would restrict free expression, lock in dominant industry players and disempower us all.

When the oral tradition was displaced by the print mode of communication we didn’t respond by making publishers pay royalties to orators. No, we adapted and that’s exactly what legacy publisher need to do now. The big lesson from history here is that those who resist technological change tend to lose. Badly.

The leaked document talks about the dangers of established players on the web having “adverse affects for their users" but that brings to mind two things:

1) The prescriptions being suggested in this leaked document would harm innovation and startups leaving users less empowered.

2) The majority of participants in this consultation took part through the SaveTheLink online tool and the concerns raised are actually around exactly the link censorship/tax powers seemingly endorsed in this leaked document.

On the second point it’s appalling that the document goes on at length about how legacy publishers want more money (of course) but yet there’s scant reference to the citizens (the vast majority of participants) and what we want.

Spoiler alert – we want free expression online to be preserved and copyright rules, if anything, to be made more flexible and fitting to the digital era. I’m not surprised by this input, as at OpenMedia we found the exact same thing when we crowdsourced a vision for free expression online with the help of over 300,000 around the world.

Sadly the democratic deficit on display in this EC document is not surprising to anyone who has been paying attention. The Commission already tried to discount the vast majority of participants in their preliminary assessment, which prompted OpenMedia and others to call them out.

To his credit Commissioner Ansip responded by making a commitment to include “all respondents” in the final analysis. The Commission then updated their website to specify that the citizen input would be part of the final assessment.  

We look forward to seeing a detailed breakdown of the input the Commission received on link censorship and link fees. From our analysis, the majority of input in the consultation shows a complete rejection of both of these bad ideas. So why is the Commission not listening to the findings of their own consultation? Could it be the case that Commissioner Oettinger is getting a bit too cozy with the lobbyists visiting his exclusive Austrian Alps chalet?

The leaked European Commission document talks about a “problem-driven approach” to policy making. Why is it then that all I see is a solution (special new fees paid to legacy publishers) in search of a problem?