Commission to publish study on Digital Music Consumption on the Internet

A study on Digital Music Consumption on the Internet was published in March by the Joint Research Centre of the European Commission. The study aimed at revisiting music sales displacement in the digital area and analyzing the effect of online music streaming on the legal purchase of digital music.

In conclusion the paper found Online streaming has a stimulating effect on the sales of digital music. While the paper suggests that the result must be interpreted in the context of a still evolving music industry, it indicates that digital music piracy does not displace legal music purchases in digital format. This means that although there is trespassing of private property rights it is unlikely to harm digital music revenues. Finally the study concludes that new music consumption channels (e.g. online streaming) positively affect copyrights owners.

Find full study here.

EU Associations question the need for a revision of the IPRED

In the context of the Commission’s recent Consultation on the Civil Enforcement of Intellectual Property Rights, the pan-European organisations Cable Europe, ECTA, ETNO and EuroISPA have underlined the essential role played by Internet intermediaries in building consumers’ trust in the digital environment and in developing the Information Society services of the future.

April 2013. The Associations have stressed that the IPRED as it stands offers a well-balanced and functioning framework to address digital piracy and that it is premature to review the Directive at this stage due to the limited experience with its implementation and the lack of evidence justifying any revision.

Read more

Re-election of EuroISPA’s Officers

The European Internet Service Providers Association re-elected its current officers for an additional one-year term.

During EuroISPA’s last general meeting held on November 29th 2012, the members have re-elected its officers for the year ahead. EuroISPA’s current officers will continue to represent the interests of Internet service providers across Europe and have agreed to renew their mandate in their respective positions.

Malcom Hutty will continue to perform his duties as EuroISPA’s President for another year. Malcom is presently the head of public affairs at LINX as well as the founder and manager of Internet Vision.

Oliver J. Süme will remain EuroISPA’s Vice President. As  Vice President of the board,  Oliver  is also responsible for the legal and regulatory affairs issues of the German Internet Industry Association and represents over 500 of the of its member companies.

Innocenzo Genna has been re-appointed EuroISPA’s treasurer. As EU affairs consultant focusing on e-commerce and telecom questions, Innocenzo is currently the director of the Italian ISP association, the AIIP.

EuroISPA welcomes the re-election and is looking forward to working with its officers for the year to come.

EuroISPA regrets the failure of the World Conference on International Telecommunications

EuroISPA regrets the failure of the World Conference on International Telecommunications (“WCIT”) to agree an acceptable new Treaty, and strongly supports the decision of EU Member States to refuse to sign up to an expanded scope for International Telecommunications Regulations (ITRs).

EuroISPA saw the WCIT as a chance to promote the benefits of competitive and liberalised telecommunications markets, which are achieving so much within the EU and other developed nations and could offer so much to the developing world. Sadly, the ITU Member States chose instead to expand the scope of the International Telecommunications Regulations, risking harm to innovation and growth as well as watering down internationally agreed standards on human rights.  Europe was left with no choice but to reject this approach.

EuroISPA opposes extending the ITRs to cover Internet governance, and supports the existing multi-stakeholder model that has proven so successful.

EuroISPA also regrets the blatant attempts seen at WCIT by some of the world’s most authoritarian regimes to use concerns about spam and security to legitimise their repressive controls on Internet content, and to use United Nations agencies to extend the effective reach of their power.

Malcolm Hutty, President of EuroISPA said: “This was a missed opportunity to extend the benefits of competitive and liberalised markets, but the blame lies with those non-European governments that insisted on creating new rights for governments instead of focusing on what’s good for end users”.

Joint statement by the ICT sector on the proposed ICT4Society Platform

As trade associations and initiatives representing a considerable proportion of the value chain of the ICT industry, we consider that Corporate Social Responsibility (CSR) is of the utmost importance for Europe and European companies.

November 2012. We welcome the opportunity to contribute to DG CONNECT’s assessment of the need for a specific multi-stakeholder initiative or platform in this field for the ICT sector, following the recent EC communication on the new EU policy on Corporate SocialResponsibility.

We firmly believe that CSR is a powerful tool to create value by increasing trust and confidence in the markets, and boosting competitiveness. The economic crisis has strengthened the need for companies to foster CSR. These two elements, trust and competitiveness, are essential for European companies today.

Conscious of the impact of their products and services on the overall society, our members have placed CSR at the heart of their business strategies, developments and stakeholder relations. Our continued support for innovation and growth is an example of our strong commitment to generate socioeconomic benefits for our users and society as a whole. CSR represents an opportunity of increasing Europe’s competitiveness on the global scene.

We strongly believe in the Internet as a platform for innovation, growth and creativity, supporting the full realisation of citizens’ fundamental right to freedom of expression and access to knowledge, as well as an engine of social development for society as a whole. To this end, our members are committed to the availability of electronic communications services to all, without discrimination on the grounds of age, sex, national or ethnic origin, sexual orientation, political, philosophical or religious beliefs, or affiliation with a trade union or other lawful association. We have therefore pledged to uphold the rule of law in the digital environment, defending the rights of users to access communications except as constrained in specific cases by a fair and properly constituted legal process, prescribed by law and subject to the fundamental principles of human rights.

At the moment, companies and other stakeholders within the ICT sector face sectorial issues that are either considered as risks (e.g. privacy and freedom of expression; relations with governments in the cases of natural disasters or other events; energy consumption; use of raw materials such as coltan), or market opportunity with a high social impact (e.g. social innovation; green ICT; promotion of entrepreneurship; youth employability).

Our commitment to corporate social responsibility further translates into engagements ranging from initiatives to empower users to protect themselves from risks to themselves and others, especially children, through educational initiatives and the provision of tools and other technical means; to initiatives to enhance digital inclusion; to a progressive reduction in the environmental footprint of products, services and operations and the provision of solutions that can help citizens and other industries to reduce their own environmental footprint.

These risks and opportunities led to the creation of well-recognised multi-stakeholder initiatives at national, European and global levels to which our respective members belong and that they are actively promoting. Examples of innovative CSR initiatives involving stakeholders from within and outside the ICT sector are contained in the appendix of this statement.

DG CONNECT’s ICT4Society platform should be seen in this global context and avoids overlaps with other multi-stakeholder initiatives such as the Internet Governance Forum.

As trade associations of the main players of the ICT industry, we believe that the proposal for a new sector-specific multi-stakeholder initiative could contribute further to industry CSR programmes as a knowledge centre, but should focus on the following objectives:

  • giving greater visibility and recognition to CSR initiatives already undertaken by the ICT industry;
  • providing opportunities for additional debate and exchange of best practices;
  • facilitating sector-wide cooperation.

Additionally, this process should be carefully assessed in order to avoid overlaps with existing programmes, and not limit flexibility and incentives for enterprises to innovate in CSR. The new platform should not create additional burdens and costs in this period of economic crisis.

We would welcome the involvement by the Commission of all the trade associations of the ICT industry in this process in order to complete the overview of CSR initiatives in place today. We hope DG CONNECT will carefully consider our comments and look forward to further contributing to the evaluation of the need for such a multi-stakeholder platform and its possible establishment.

Signatories of this joint statement include:

Cable Europe

Oral Report from Workshop 111 “Protecting the Rule of Law in the Online Environment”

to the Security, Openness and Privacy plenary session of the 7th Internet Governance Forum, Baku, Azerbaijan, 8th November 2012. EuroISPA and the European Commission jointly organized a workshop on ‘Protecting the rule of law in the online environment’.

November 2012. Participants were asked to describe what criteria they consider constitute adequate mechanisms for adjudication of disputes and complaints, whether there can be public confidence in processes developed with the input of stakeholders that are themselves one of the parties to complaints, and what structures they recommend be adopted in the design of complaint resolution procedures to respect the legitimate interests of all parties.

Malcolm Hutty, President of EuroISPA:  My name is Malcolm Hutty, I am the President of EuroISPA, the European Internet Services Providers Association, and the Head of Public Affairs for the London Internet Exchange, here to present the report of Workshop 111, “Protecting the rule of law in the online environment” which was cosponsored by EuroISPA and the European Commission. I am pleased to say that we had a truly multi?stakeholder panel that involved all the sectors that are engaged with this broad debate. This included representatives from businesses that make complaints about behaviour and content on the internet on the grounds that it maybe legal, NGO’s representing citizens and those of journalists, a criminal law specialist, and from the government sector we had an intergovernmental organisation, a public official responsible for balancing policy options and an eminent legislator from the European Parliament.  Even within the constraints of ensuring such a wide participation of sectoral representation we managed to ensure representation from 4 continents. I am particularly pleased to report that that included an NGO from Azerbaijan representing journalists here who sometimes have difficulties in issues regarding freedom of expression.

The context of our workshop really follows up from one aspect of what the previous workshop reported a moment ago, the questions around so-called “privatisation of law enforcement”.  The real context is the risk that as the world moves ever more online, as the online world becomes an ever-more central part of the world economy and our everyday lives, we are moving to a condition where both content and behaviour is relies upon an online intermediary, where the off line world equivalent had no such intermediary. The presence of such intermediaries creates a new route for those who wish to complain about content and behaviour on the grounds that it is said to break the law or breach the rights of a third party, by putting pressure on the intermediary to apply sanctions on those responsible for the content or behaviour concerned. This raises questions about how to apply and protect the rule of law.

Thus we arrive at the core question for the workshop, how do we ensure that the rule of law and the principle of procedural fairness – what is known is some jurisdictions as the principle of “due process” – how do we ensure that these principles that we expect in the off line world are equally and effectively applied in the online context?

Now, as you can imagine, with such a large range of participants, there were many perspectives, and many valuable specific points were made that sadly there is clearly insufficient time to repeat here. Mr Chairman, the Internet Governance Forum is not a forum where we seek to make decisions or expect to reach universal agreement or consensus, but I am pleased to say that there were two key points of consensus which we arrived at, which were agreed by all those present.

First, the rule of law and questions of procedural fairness are invoked when intermediaries take action to intervene to suppress content and activity on the grounds that it is illegal or infringes the rights of a third party. That important principle was proposed by the Council of Europe and endorsed by those present.

Secondly, it was agreed that while illegal material and behaviour should be addressed, legal material and behaviour should not be removed or suppressed. This implies a need for mechanisms to distinguish between the two. Now, given that the first proposition that was universally endorsed, that means that questions to the rule of law and procedural fairness are invoked, it follows that those mechanisms to distinguish between the legal and the illegal must be ones that provide and respect the interests of the person who is complained about as well as the interests of those making the allegations.

This is an important principle that was also endorsed by all those present, and I suggest it provides an important foundation stone to any future discussions about the role of the rule of law in the online environment.

Thank you Mr Chairman.

EuroISPA will co-host 2 workshops at the Internet Governance Forum in Baku

On 7th November 2012, EuroISPA will co-host 2 workshops – one with the European Commission and one with the Council of Europe – at the Internet Governance Forum in Baku.

November 2012. The first workshop on free cross-border flow of Internet traffic will address the question of how legal framework and principles impact the freedom of expression and free flow of information. The second workshop on Protecting the rule of law in the online environment will ask participants to describe what criteria they consider constitute adequate mechanisms for adjudication of disputes and complaints, whether there can be public confidence in processes developed with the input of stakeholders that are themselves one of the parties to complaints, and what structures they recommend be adopted in the design of complaint resolution procedures to respect the legitimate interests of all parties.

1- Free cross-border flow of Internet traffic

EuroISPA and the Council of Europe will co-host a workshop on free cross-border flow of Internet traffic. The workshop will address the question of how legal framework, regulations and principles impact the freedom of expression and free flow of information. The objective of this workshop is to discuss challenges to the unimpeded cross-border flow of Internet traffic and to make an overview of best practices.

International law provides for the exercise and enjoyment of the right to freedom of expression and access to information regardless of frontiers. Being a global network the Internet enables and facilitates the flows of information, content and services as well as people’s communications across borders. In this context it is considered important to have a free and unimpeded flow of Internet traffic.

Part of the challenge in this area lies with the fact that there are differences in national regulatory and policy frameworks and approaches. How do legal requirements on providers of services or of essential numbering and addressing resources inhibit cross-border flows initiated by users of those services and resources? What is the impact on free flows of traffic and information where ISPs/electronic service providers are demanded to act against third party content or transmissions where alleged infringements of various kinds have occurred? What restrictions or measures on the Internet traffic in one country can have an impact on access to information in another country?

The Council of Europe, pursuant to its Internet Governance Strategy 2012-2015, will consider developing appropriate human rights-based standards to protect and preserve the unimpeded cross-border flow of legal Internet content. The OECD promotes the global free flow of information as one of the basic principles for Internet policy-making. Also, discussions on the cross-border flow of Internet flows may relate to the revision of the International Telecommunication Regulations by the ITU. Major private sector players have called for international commitments to “expressly prohibit restrictions on legitimate cross-border information flows”.

More information on this workshop here

2- Protecting the rule of law in the online environment

EuroISPA and the European Commission will jointly organize a workshop on ‘Protecting the rule of law in the online environment’. Participants will be asked to describe what criteria they consider constitute adequate mechanisms for adjudication of disputes and complaints, whether there can be public confidence in processes developed with the input of stakeholders that are themselves one of the parties to complaints, and what structures they recommend be adopted in the design of complaint resolution procedures to respect the legitimate interests of all parties.

Stakeholders with an interest in restraining certain types of content and conduct seek to co-opt Internet intermediaries as their enforcement agents, using measures such as notice and takedown, network blocking, and other techniques. At the heart of such procedures lie two implicit claims: that the law proscribes certain content or conduct, and that the content or conduct in question does in fact fall within the proscribed category. Both of these claims are in principle capable of refutation: the person responsible for the material or conduct in question may claim either that they are legally entitled to do the thing they are accused of, or that although they wouldn’t be entitled to do it, they didn’t do it. For example, in a copyright dispute, the publisher may either admit their content is a copy of somebody else’s material, but claim legally protected use, or may deny their content is a copy. Internet intermediaries protest that they are unable to evaluate legal defences and factual disputes, leading them to either reject proposals for intervention partnerships with complainant groups (frustrating both those groups and the aspirations of policy-makers to foster non-legislative measures) or assume that all allegations by reputable mass-scale submitters of complaints are well founded (thereby denying one party a fair hearing).

Further, the development of intervention procedures through negotiation between Internet intermediaries and regular submitted of complaints lacks structures to support consideration of fundamental rights in general, and the “rule of law” / “due process” qualities in adjudication procedures in particular. Structures may not be present to provide systematic assurance that such extra-judicial measures meet essential minimum requirements for transparency, independence, consistency, non-discrimination and other necessary standards. Together, these shortcomings lead to charges of systematic bias in extra-judicial processes for intervention against Internet misuse by Internet intermediaries.

More information on this workshop here

Facebook joins the Industry Forum of EuroISPA

Facebook has joined EuroISPA’s Industry Forum. The European Association of Internet Service Providers has welcomed the new Industry Forum member.

October 2012. Facebook as a multinational social networking service joined the EuroISPA Industry Forum, which is open to companies with a legitimate interest in the Internet service providers industry in the European Union. Both EuroISPA and Facebook looked forward to discussing internet related questions together.

The Industry Forum acts in an advisory capacity to the EuroISPA Council, and allows individual companies with a legitimate interest in the Internet industry to participate in EuroISPA’s activities as well as in work groups.

EuroISPA President Malcolm Hutty stated about the increasing membership: “I’m delighted to have Facebook join the pre-eminent set of global companies that advise and liaise with us”.

Facebook is a multinational social networking service launched in February 2004, in the United States. Melina Violari, Policy and Privacy Manager expressed the company’s pleasure to join the EuroISPA Forum: “Facebook is very pleased to be joining the EuroISPA forum, as we recognize how important it is for the Internet sector to come together and share its experience.”

Ms Violari explained why being a forum member of EuroISPA was important for the company: “By working together on common concerns and partnering with tens of millions of Internet users, we want to contribute in ensuring that policymakers understand the profound and positive impact of the Internet economy on jobs, economic growth, freedom and innovation.”

EuroISPA reacts on the controversial CleanIT Project

The CleanIT is a project carried out with the financial support of the European Commission. The Project discusses the central role played by the Internet for terrorists and extremist networks.

October 2012. However, EuroISPA expresses skepticism about the approach and the suggested methods to address alleged terrorism content online, as discussed within the CleanIT Project. At EuroISPA, we all agree that there is illegal content on the Internet. We all also agree that it ought to be taken off the Internet and that this can technically only be done by the entities that have control over the relevant IT systems. However, we also believe that any action or initiative must be preceded by a process that clearly identifies and quantifies the problem to be addressed.

If such a process has not been defined, not only will it be difficult or impossible to identify solutions, but there is a considerable risk that the Internet industry will be forced to implement ill-designed solutions to an ill-defined problem.

The CleanIT Project is clearly heading in this worrying direction:

1. The General Principles of the CleanIT Project do not provide any evidence or statistical information whatsoever to justify the adoption of “additional measures” by Internet providers in relation to allegedly terrorist content. An evidence based approach is the backbone of any legislative or self-regulatory intervention. Lacking any comprehensive assessment showing clearly where the shortcomings lie, any action, particularly if “proactive”, would risk creating a problem that does not exist.

2. The CleanIT Project shows clearly a superficial knowledge of the Internet sector. The documents on the CleanIT Project’s website refer to “Internet companies” in general, but for the purposes of the project a holistic approach can’t be taken. For example, the notice and take down procedures proposed in the project are relevant only to companies that are hosting providers. Pure access providers cannot deploy this tool. Access Providers, due to the ambiguous terminology would, however, still be bound to follow the proposed procedures and, in fact, are mentioned alongside content delivery companies and content publishing companies.

3. The CleanIT Project proposes that Internet companies take proactive measures to detect the “unequivocal use” of the Internet for terrorism purposes specifying that where the industry “cannot agree” on the unlawful nature of content, only then should a judge be requested to perform such a value judgment. This is a clear attempt to privatise the law enforcement and judicial duties in relation to a specific content, terrorism, whose illegality greatly depends on the context.

4. The CleanIT Project seems to overlap with other initiatives currently discussed by other Commission’s Directorates-General, i.e. the “Notice&Action” initiative by DG Internal Market (addressing illegal activities online in a horizontal way); the “Open Voluntarism” initiative (to create a European, principles-based code of conduct for self- and co-regulatory mechanisms) and the “ICT4Society” (to set a multi-stakeholders platform to advance Corporate Social Responsibility in the ICT sector) by DG CNECT.

5. The CleanIT Project has not been endorsed by the ISP community. The disclaimer on the website of CleanIT goes as far as specifying that even if some companies attended the meetings “[t]his does not implicate any commitment to temporary or future results by the individuals or their organization”. This clear acknowledgement of lack of support is symptomatic of the legitimacy of the CleanIT project and of the restrictive and, sometimes, even dangerous measures proposed.

The negative impact on EU businesses in terms of users’ trust in our services and the legal uncertainty lead EuroISPA to reject the CleanIT project. CleanIT Project’s proposals – such as the implementation of doubtful technical measures to monitor legal communications online; the elimination of anonymity online and the relegation of the judiciary to a last resort instance ¬- are a serious threat for democratic values, the presumption of innocence, citizens’ freedoms and, ultimately, businesses’ reputation within the EU and abroad.

Self Regulation: risk of privatisation of law enforcement

EuroISPA contributed to the Commission’s consultation on a “Code for Effective Open Voluntarism: Good design principles for self- and co-regulation and other multi-stakeholder actions”.

October 2012. An EU-level, principles-based code of conduct, if well-designed, balanced and respectful of all interests at stake could be a useful complement or sometimes even substitute to legislation. However, self-regulation should not be used to delegate to the private sector tasks belonging to the law enforcement. This would amount to privatize law enforcement and risk having negative consequences for the rule of law.

The European Internet industry, which EuroISPA represents, is the most remarkable growing business sector in Europe, if compared to other industries. The quick technological evolution poses policy challenges that most of times end up with pressure on EU and national decision-makers to provide a response. Sometime, the decision is taken to legislate while others a soft-law approach is preferred. EuroISPA clearly favors the latter form of intervention over the former, but we acknowledge that self-regulation, in order to be effective, needs to draw a clear line between the different roles and competences of the public and private sectors. Frequently, self-regulation is used to delegate to the private sector powers belonging to the law enforcement. The private sector is not in the position to decide a case on the merits. This eventually would amount to privatize law enforcement and risk having negative consequences for the rule of law.

If this shift of competences through self-regulation is suitable or not from a political, social and legal point of view, is not the focus of our contribution. What is certain is that the costs of compliance would divert business strategies from innovation and job creation to the detriment of the Digital Single Market.

EuroISPA has been advocating since long a change of this trend in various dialogues and stakeholders’ platforms convened by the Commission in different areas. The fact that the majority of dialogues  we invested time and resources in ended up in failures, is evidence of the fact that it is time to reconsider the entire paradigm and start learning from past mistakes. We consider that the approach undertaken with this consultation could be a constructive one but at specific conditions.