Leak from EU Commission points to a Link Tax and Internet censorship

Leaked documents from the EU Commission pose serious threats for free expression online. All signs point to the controversial link tax and Internet censorship regulations. Here's our take.

Politico has just released a leaked draft of the European Commission’s (EC) Communication on Platforms. In human speak, this is a draft statement of how they intend to implement new laws that will have serious implications for free expression and how we share and collaborate online.

Right now the Save the Link campaign is mobilising tens of thousands of Internet users to stand up against plans that will restrict the ability to freely link to content, and harm how the web operates. This leak is a powerful indication of why it's so important that we keep the fight up and campaign on these issues.

In the document the Commission firmly states that they want an EU wide Internet “without dominance by a small number of players” (page 5), yet what they lay out will inevitably produce exactly the opposite: A power imbalance that favours outdated big media, encourages censorship, and suggests they will continue to pursue their controversial link tax scheme.

There are two big policy areas that try to regulate free expression online. Here they are:

1. The Link Tax. AKA: Ancillary Copyright

Unfortunately, it looks like the link tax is still very much in the cards.

They refer to ‘creating a fair method of distribution of revenue for copyrighted material, made available through platforms’. That’s a pretty complicated and vague statement, but to us this sounds like the link tax (ancillary copyright). We've seen that language refer to proposals that would require websites to pay huge publisher collection bureaucracies royalty fees, just to use snippets of summary text in hyperlinks.

The Commission have just launched a new consultation open to the public, on this exact link tax idea – and yet they are still carrying on as though it an unstoppable project - when there is over a month to go!  Pre-determining the outcome of their own consultations is just plain insulting.

But don’t worry, we have a plan to push back that you’re going to learn all about next week.

2. Internet Censorship. AKA: Intermediary Liability

We hadn't heard much work from the Commission about this issue in a little while so we'd dared to hope that they were leaving it well alone. However, they are all over it in this document, and it looks like the idea is back from beyond the grave.

These are rules that would make websites liable for content submitted by users, including hyperlinks. This means that 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 referred to as ‘intermediary liability’.

The proposal of intermediary liability stems from two very different concerns:

1. The sharing of copyrighted material without permission of the owner

2. Bullying, harassment, and hate speech online.

It’s important to pause here and remind the reader that these two things are completely separate issues, affecting businesses or individual Internet users. So from the beginning, we want to stress that any “one size fits all” solution is going to be flawed because in either case (especially harassment) we need a solution that doesn’t result in blanket censorship.

Now the Commission is saying that it wants websites to take more responsibility for the content people post – but using a mixture of new rules and 'self-regulatory measures' (or, put simply: “letting individual websites develop their own policies”) that encourages websites to take action to remove content ‘to safeguard societal values’ – a phrase that really smells like “to shut down free speech”. I know, that’s a mouthful, right?

We worry that without adequate safeguards like independent, judicial oversight this type of Internet censorship could have a very significant impact on everyday Internet users.

We are very aware of how serious online bullying and harassment are. But the Commission presents a solution for both aggressive behaviour and for copyright infringement in one poorly-evidenced policy. In fact online censorship schemes that allow websites to remove content based purely on their own guidelines have a tendency to silence victims, rather than empower them (take a look at www.onlinecensorship.org for excellent reporting on takedowns).

If it is true that this is going ahead, we will continue to speak to decision makers, and fight to halt schemes that would restrict free expression.

What are our questions for Commissioner Oettinger?

After reviewing the leak, we’ve got a few questions for the Commission and our favourite anti-Internet Commissioner, Günther H. Oettinger:

• Will you listen to the results of your consultations and give Internet users, not just businesses, the right to be heard? Tens of thousands of Internet users have asked you to abandon this controversial link tax plan, yet you keep pushing it forward.

• Will your proposals to give websites the power to take down content or will they follow the Manila Principles on Intermediary Liability that were created by copyright experts, human rights advocates, digital rights advocates, and academics?

• Will any plans to take create laws and policies to combat online bullying by meaningfully and directly consulting with victims and experts?

and finally,

• Will you ever write documents that don't include doublespeak sentences like this one:

  “The EU considers that specific regulatory action would be more effective through sectorial legislation on the basis of maximum harmonisation and a problem-driven approach, and without prejudice to the e-Commerce Directive.”

Sigh.

The good news is we have a new plan to push back starting next week. Don’t worry, if you’re following this saga, we’ll make sure you have a way to speak out. And if you aren’t aware of what’s going on, we’ll make sure you do.

In the meantime, be sure to join us at https://SaveTheLink.org and we’ll keep you in the loop for what comes next.