21 Dec 2012 | Digital Freedom, Uncategorized
UPDATE: An appeals court in Milan acquitted today three Google executives of violating the privacy of an Italian boy with autism, in the so-called “Vividown” case. “We’re very happy that the verdict has been reversed and our colleagues’ names have been cleared. Of course, while we are delighted with the appeal, our thoughts continue to be with the family who have been through the ordeal,” said Giorgia Abeltino, Google Italy Policy Manager, in an statement.
The European Union Directive on electronic commerce is not the most inspirationally named document. The title would barely fit on a placard, and scans awkwardly for sloganeering (“What do we want?” “Implementation of the Electronic Commerce Directive!” “When do we want it?” “Within an agreed scheduled framework period, subject to negotiation between neighbour states and key stakeholders!”)
But the eCommerce Directive, as it is known by, er, some people, states a principle that is absolutely crucial to how the web works.
Article 12 of the directive, adopted in 2000, establishes the principle of the “mere conduit”. That is the idea that an Internet Service provider is not liable for content hosted on its platform, provided it “(a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission.”
This idea means that, at least in theory, Facebook, YouTube etc. can allow users to post anything on their platforms without worrying about having to account for it legally.
I say “in theory”. Today (21 December), an appeal will take place in an Italian court over a ruling which severely tested the concept of “mere conduit”.
In September 2006, Italian secondary school students posted a video of a boy with Down’s Syndrome being taunted and beaten by other teenagers. The video remained online until November that year, when it was removed by YouTube following a request by Italian police.
In 2010, three Google executives were found guilty of breach of privacy by an Italian court in a case brought by Down’s Syndrome charity Viva Down. The appeal comes to court on Friday.
Google protests that it acted as soon as it was notified by the authorities that the video may be illegal. Prosecutors claim that YouTube should have responded to private complaints sooner.
Videos of bullying are unpleasant to say the least, but the people responsible for the harassment of the boy, and the uploading of the video, have been convicted.
The 2010 conviction of Google employeees seriously breaches the idea of ISP as “mere conduit”, and with that, the way the web works. If social platforms are to be held responsible for all content, the consequences could be catastrophic for the way we operate on the web. Even the Chinese Internet police cannot pre-moderate every single piece of content uploaded, which is what ISPs may feel obliged to do should they be held responsible for content. The alternative might be an automated “banned words” list, perhaps. Either way, we would see an enormous escalation of censorship. What’s more, we would be establishing, even more than already exists, a system of privatised censorship. By handing over responsibility for what we say online from individuals to ISPs, we would be allowing private companies even more power than the state has to govern our speech.
Already this week there has been uproar over Instagram’s (attempted, then hastily withdrawn) grab for users’ content, itself perhaps a breach of mere conduit status.
And if this ruling is upheld in Italy, we’ll be facing another blow to individuals’ free use of the web. Already, a huge deal of our communication happens across private networks. If they are legally responsible for every word, picture and video, they will be inclined to caution, and our space to speak ever more narrowed.
Padraig Reidy is news editor at Index on Censorship
20 Dec 2012 | Leveson Inquiry
In my months covering the Leveson Inquiry, a clear and startling picture was painted of closed, secretive police forces, tense in their relationship with reporters on local and national papers and fiercely protective over the flow of information.
Justin Penrose of the Sunday Mirror described a “state of paralysis” in police-press relations. The Times’ crime editor Sean O’Neill said that “in the current climate, if you arranged to meet an officer you’d be looking over your shoulder the whole time.” The Guardian’s Sandra Laville cited an “over-reaction” by the Metropolitan police in response to the Inquiry, adding that “open lines of communication, which have been there for many years, are being closed down.”
So it is worrying that some of the more terrifying passages of the Leveson report that could perpetuate this closed culture, chill investigative journalism and also have grave implications for whistleblowers have gone almost unnoticed.
First, Leveson recommends increasing sentencing powers for breaches of section 55 of the Data Protection Act and also suggests that paragraph 2 (b) of schedule 1 the Police and Criminal Evidence Act 1984 (PACE) be repealed. The latter means that police should only request journalistic material as a last resort; repealing it would make it far easier for them to do so. As Index wrote in a policy note published today, the work of journalists who cover crime or terror stories could be compromised if this proposal is followed through, and sources that require protection might feel less confident in dealing with the press as a result.
O’Neill told me he finds the proposed change to PACE “terrifying”, calling it a “landgrab of massive new powers” that could force journalists to disclose their sources.
Add to this Leveson’s suggestion for an internal whistleblowing hotline, which would, in his view, get rid of the need for confidential briefings to journalists on internal police issues. The judge also recommends that “it should be mandatory for ACPO [Association of Chief Police Officers] rank officers to record all of their contact with the media”, and proposes an end to off-the-record briefings.
“This is music to the ears of people in the Met,” O’Neill said. “They think they should be the guardians of what transparency is.”
“Leveson has effectively just endorsed the approach the Met adopted post-phone hacking, when it went into complete lockdown,” he added.
Leveson might well strive for a more transparent environment — after all, it was the shady culture of collusion between editors, police officers and politicians that allowed reprehensible newsroom practices to fester and helped to severely dent public trust. This is rightly being investigated. But there is nothing wrong with an officer talking to a journalist: contact between them is just one of the ways reporters can scrutinise those in power, and the informal kind might provide more “texture” and “colour” that official sources might not give, as Laville told the Inquiry last March. Both parties are humans, and need to be able to discuss matters openly and without fear if information is to flow freely.
For their part, both David Cameron and Nick Clegg expressed strong concern over the data protection recommendations when they responded to the report last month. Yet amid the recent arrest of an officer in connection with a leak that spurred the “plebgate” row and resignation of Tory chief whip Andrew Mitchell, there is greater concern over how police officers and journalists navigate the murky post-Leveson world, as Vikram Dodd alluded to this week.
The reality is that this unsavoury mix of uncertainty and landgrabs fits a wider pattern of a culture yearning for a firmer grip on information: from disciplining a police officer for tweeting to plans for secret courts in the Justice and Security Bill currently under consideration in the House of Lords, there seems to be an appetite for perpetuating secrecy.
It’s hard to know what’s more worrying: that Leveson — so adamant was he about protecting freedom of speech — suggested these alarming proposals, or that so few seem bothered by the prospect of information becoming such a shackled commodity.
Marta Cooper is an editorial researcher at Index. Follow her on Twitter: @martaruco
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Read our latest policy note in response to the Leveson Report
