EuroISPA: Rule of Law must not be sacrificed in fight against illegal content online

Brussels, 28 September 2017- EU lawmakers must not sacrifice the rule of law to advance the fight against illegal content online, EuroISPA warned today as the European Commission published its new guidelines on notice & action.

The guidelines endorse the trend that has seen policymakers across Europe force online intermediaries to play judge, jury and executioner with regard to online content control. As EuroISPA has consistently argued for 20 years, such privatised enforcement undermines due process and natural justice, a key underpinning for the enjoyment of fundamental rights. Such core values would be further frustrated by any move towards a notice & staydown regime (a possibility the guidelines leaves open), whereby Internet intermediaries would be forced to undertake ex ante monitoring and filtering third-party content upload on their networks.

Today’s guidelines fail to appreciate the reality that while the Internet is a global public sphere that empowers citizens and grows economies, standards of illegality are defined on a country-by-country basis. This creates a major dilemma for Internet service providers (ISPs), as they are simply unable to properly assess the context-dependent legality of content – in this regard it is worth stressing that the overwhelming majority of Internet infrastructure companies in Europe are SMEs. The need for clear and specific judicial guidance on whether a piece of content is illegal is particularly important in the context of so-called ‘controversial content’, as such content can often be presented in non-local languages and framed in varying political and cultural contexts (e.g. parody, free expression, hate speech, etc).

Without this judicial clarity, ISPs are trapped between the risk of failing to properly identify illegal content and the risk of engaging in excessive censorship, thus undermining the fundamental rights of their users. The overwhelming majority of citizens use the Internet for its inherently empowering characteristics. And in that context, we must ensure that structures are in place such that ISPs’ efforts to remove illegal content do just that, and not more.

We are particularly concerned about the European Commission's support for "trusted flagger" schemes, in which the entity making the complaint is also the entity that determines whether the complaint is well-founded. While this mechanism has been an effective means to empower specialist hotlines combatting child sexual abuse material, its appropriateness is specific to the unique circumstances of that material. The suggestion that law enforcement authorities could submit content takedown requests without any mechanism to ensure due process is a new and worrying departure in online enforcement. Worse, the suggestion that intellectual property owners would also be given an unchallengeable right to suppress content can only bring this mechanism into disrepute, undermining trust in CSAM hotlines and ultimately endangering children.

Linked to the issues noted above, the guidelines’ suggestion that law enforcement authorities could submit content takedown requests without any mechanism to ensure due process is deeping worrying.

EuroISPA members have consistently led the way in the fight against illegal content online, from their stewardship of industry hotlines dedicated to fighting child sexual abuse online, to anti-spam and anti-malware initiatives across Europe. In that context, we reiterate our call for policy action to ensure that illegal content on the Internet is properly policed within the framework of due process. It is essential that effective content control is underpinned by court authority, to ensure that the fundamental freedoms of European citizens are protected from those who would wish to undermine them.