*rC3 preroll music*
Herald: And the the talk that is about to begin now is by Christoph Schmon from EFF
and Eliska Pirkova from Access Now and they will be talking about this, probably
maybe the biggest legislative initiative since the GDPR in Brussels. It's called
the Digital Services Act. And onto you two. You're muted.
Eliska Perkova: I realized. Hello! First of all, thank you very much for
having us today. It's a great pleasure to be the part of this event. I think for
both of us, it's the first time we are actually joining this year. So it's
fantastic to be the part of this great community. And today we are going to talk
about the legislative proposal, the EU proposal which causes a lot of noise all
around Europe, but not only in Europe, but also beyond. And that's the Digital
Services Act legislative package that today we already know that this
legislative package actually consists of two acts: Digital Services Act and a
Digital Market Act. And both of them will significantly change the regulation of
online platforms with a specific focus on very large online platforms, also often
referred to as gatekeepers. So those who actually hold a lot of economic dominance,
but also a lot of influence and control over users rights and the public
discourse. So I'm going to start with giving you a quick introduction into
what's the fuss about, what is actually the DSA about, why we are also interested
in it and why we keep talking about it, and why this legislation will keep us
preoccupied for the years to come. DSA was already announced two years ago as a part
of European Union digital strategy, and it was appointed as one of those actions that
the digital strategy will be actually consisting of. And it was the promise that
the European Commission gave us already at that time to create the systemic
regulation of online platforms that actually places hopefully the users and
their rights into the center of this upcoming legislation. So the promise
behind DSA is that these ad-based Internet bill, and I'm speaking now about Ad-Tech
and Online-Targeting. The Internet, as we actually knew, will be
actually replaced by something that puts user and users controls, and users right
as a priority. So both of these legislations implemented and drafted
right, should be actually achieving that goal in the future. Now, previously,
before DSA actually was drafted, there was some so-called e-Commerce Directive in
place that actually established the basic principles, especially in the field of
content governance. I won't go into details on that because I don't want to
make this too legalistic. But ultimately, DSA legislation is supposed to not
completely replace but build up on the top of this legislation that actually created
the ground and the main legal regime for almost 20 years in Europe to regulate the
user generated content. So, DSA and DMA, as the legislation will seek to harmonize
the rules addressing the problem, such as online hate speech, disinformation. But it
also puts emphasis finally on increased meaningful transparency in online
advertising, the way how the content is actually being distributed across
platforms and also will develop a specific enforcement mechanism that will be
actually looking into it. Now, before I will actually go into the details on DSA
and why DSA matters, and do we actually need such a big new legislative reform
that is coming from the European Commission? I want to just unpack it for
you a little bit what this legislative package actually consists of. So, as I
already mentioned, two regulations... the regulation, the strongest legal instrument
European Commission actually has in its hands, which is supposed to achieve the
highest level of harmonization across the member states. And we all can imagine how
difficult that will be to achieve, especially in the realm of freedom of
expression and particular categories of user generated content, which is so deeply
complex dependance. All of those related to content moderation and content
curation will be mainly in the realm of Digital Services Act. And then the second
regulation, the Digital Market Act, will be specifically looking at the dominance
of online platforms, economic dominance, competitive environment for smaller
players, the fairness in the competition. And it will also establish the list of
do's and don'ts for gatekeeper's platforms. So something that... is so the
platforms that actually hold a relevant dominance and now based on these new
proposals, we know that these platforms are mainly called as very large online
platforms. So this is exactly how the legislation refers to gatekeepers now. And
now I think one more point that I want to make is that the DSA and the DMA were
launched on the 15th of December 2020. So it was literally a Christmas present given to
the digital rights community by the European Commission, a long time
anticipated one. The work on DSA started, however much earlier. Electronic
Frontiers Foundations, as much as Access Now, together with EDRi, were working very
hard to come up with the priorities and recommendations what we would like to see
within these legislations to be enshrined, because from the beginning we
understood the importance and the far reaching consequences this legislation
will have not only inside of the European Union, but also beyond. And that brings me
to the final introductory point that I want to make before I will hand over to
Chris, which is why and do we actually need DSA? We strongly believe that there
is a big justification and good reason to actually establish a systemic regulation
of online platforms in order to secure users fundamental rights, empower them,
and also to protect our democratic discourse. And this is due to the fact
that for many years we're witnessing this phase: quite bad regulatory practices in
platform governance that are coming from member states and Chris will provide for a
very concrete example in that regard, but also coming from the European Commission
itself, mainly the proposed online service content regulation, for instance, or we
all remember the story of copyright that Chris will discuss a little bit further.
We saw how not only the member states, but also European Commission or European
Union, in order to actually establish some order in the digital space, they started
pushing the state's obligation and especially states positive obligation to
protect the users' human rights in the hands of online private platforms that
started replacing state actors and public authorities within the online space. They
started assessing the content, the legality of the content, deciding under a
very short time frames what should stay online and what should go offline with no
public scrutiny or transparency about practices that they kept deploying. And
they keep deploying to this day. Of course, platforms under the threat of
legal liability often had to rely and still have to rely on the content
recognition technologies for removing user generated content. A typical example could
be also Avia law, which will be still mentioned today during the presentation.
And the typical time frames are usually those that extend from one hour to 24
hours, which is extremely short, especially if any users would like to
appeal such a decision or seek an effective remedy. At the same time, due to
the lack of harmonization and lack of proper set of responsibilities that should
lie in the hands of these online platforms. There was a lack of legal
certainty which would only reinforce the vicious circle of removing more and more
of online content in order to escape any possible liability. And at the end, to
this day, due to the lack of transparency, we lack any evidence or research based
policy making, because platforms do not want to share or inform the public
authorities what they actually do with the content, how they moderate and those
transparency information that we receive within their transparency reports are
usually quantity oriented instead of quality. So they focus on how much content
is actually being removed and how fast, which is not enough in order to create
laws that can actually provide any more sustainable solutions. And ultimately, as
we all agree, the core issue doesn't lie that much with how the content is being
moderated, but how content is being distributed across platforms within the
core of their business models that actually stands on a attention economy and
on the way, how sensational content is often being amplified in order to actually
prolong that attention span of users that visit platforms on regular basis. And I'm
packing quite a few issues here. And this supposed to be just like a quick
introductory remark. I will now hand over to Chris that will elaborate on all these
points a little bit further, and then we take a look and unpack a few quite
important parts of the essay that we feel should be prioritized in this debate at
the moment. Chris, over to you. Christoph Schmon: Hi everybody. I'm
quite sure that many of you have noticed that there's a growing appetite from the
side of the European Union to regulate the Internet by using online platforms, as the
helping hands to monitor and censor what users can say/share/do online. As you
see on the slide, the first highlight of this growing appetite was corporate upload
filters, which are supposed to stop copyright protected content online.
Thousands of people, old and young, went on the streets to demonstrate for free
Internet, to demonstrate against technical measures to turn the Internet into some
sort of censorship machine. We've made a point then, and we continue making the
point now that upload filters are prone to error, that upload filters cannot
understand context, that they are unaffordable by all but the largest tech
companies, which happen to be all based in the United States. But as you well know,
policymakers would not listen and Article 13 of the copyright directive was
adopted by a small margin in the European Parliament, also because some members of
European Parliament had troubles to press the right buttons, but I think it's
important for us to understand that the fight is far from over. The member states
must now implement the directive in the way that is not at odds with fundamental
rights. And we argue that mandated automated removal technologies are always
in conflict with fundamental rights. And this includes data protection rights. It
is a data protection right not to be made subject to Automated Decision-Making
online, if it involves your personal data and if such decision making has a negative
effect. So we believe, all those legal arguments aside, I think the most worrying
experience with upload filters is that it has spillover effects to other
initiatives. Sure, if it works for copyright protected companies, it may well
work for other types of content, right? Except that it doesn't. Many considered
now a clever idea that web forums should proactively monitor and check all sorts of
user content. May this be communication, pictures or videos, and they should use
filters to take it down or the filters to prevent the re-upload of such content. An
example of such spillover effect that Eliska had mentioned is the draft regulation of
terrorist related content. It took a huge joint effort of civil society groups and
some members of Parliament to reject the worst of all text. We had recent
negotiations going on and at least we managed to get out the requirement to use
uploads filters, but still a twenty four hours removal obligation that may nudge
platforms to employ those filters nevertheless. And we see that particularly
in national states, they are very fond of the idea that platforms rather than
judges should be the new law enforcers. There are now several states in
the European Union that have adopted laws that would either oblige or nudge
platforms to monitor users speech online. First up was the German NetzDG,
which set out systematic duties for platforms. Then we had the French law
Avia, which copy-pasted the NetzDG and made it worse. And last we have the
Austrian Hate Speech bill, which is a mix of both the German and the French
proposal. They all go much beyond copyright content, but focus on hate
speech and all sorts of content that may be considered problematic and in those
respective countries, not necessarily in other countries. And this brings me to the
next problem. How do we deal with content that is illegal in one country, but legal
in another? A recent Court of Justice ruling had confirmed that a court of a
small state like Austria can order platforms not only to take down defamatory
content globally, but also to take down identical or equivalent material using
automated technologies. For us this is a terrible outcome, that will lead to a race
to the bottom, where the countries with the least freedom of speech friendly laws
can superimpose their laws on every other state in the world. We really believe that
all this nonsense has to stop. It's time to acknowledge that the Internet is a
global space, a place of exchange of creativity and the place where civil
liberties are suppose to exist. So we are fighting now against all those national
initiatives. We had the great first victory, when we have to bring down the
French law Avia - the Avia bill that had imposed the duty for platforms to check
and remove potentially illegal content within 24 hours. Before the Conseil
constitutionnel, the French Supreme Court, we had argued that this would push
platforms to constantly check what users post. And if platforms face high
fines... of course, they would be rather motivated to block as much context of the
content as possible. We've made a point that this would be against the Charter of
Fundamental Rights, including freedom of information and freedom of expression. And
it was a great victory for us that the French Supreme Court has struck down the
French Avia bill and followed our argument, as you see on the slide. We also
see now that there's a push back at least against the update of the German NetzDG,
which would have provided new access rights for law enforcement authorities.
This and other provisions are considered unconstitutional. And as far as I
understand and, perhaps listeners can correct me, the German president has
refused to sign the bill and the Austrian bill goes the similar path way - got
recently a red light from Brussels. The commission considers it in conflict with
EU principles. Also, thanks to joint effort by epicenter.works. And this shows
that something positive is going on, it's a positive development, the pushback
against automated filter technologies. But it's important to understand that
those national initiatives are not just purely national attempts to regulate hate
speech. It's an attempt of an EU member state to make their own bills, as badly as
they are, some sort of a prototype for EU- wide legislation, a prototype for the
Digital Services Act. And as you know, national member states have a say in EU
lawmaking: their voices are represented in the council of the EU and the European
Commission, which will be disincentivized to propose anything that would be voted
down by the council. I think that's a nice takeaway from today, that lawmaking in
national member states is not an isolated event. It's always political, it's always
Netzpolitik. The good news is that as far as the European Commission proposal
for a Digital Services Act is concerned, that it has not followed the footsteps of
those bad, badly designed and misguided bills. It has respected our input, the
input from Access Now, from EFF, from the EDRi network, from academics and many
others, that some key principles should not be removed, like that liability for
speech should rest with the speaker. The DSA, it's also a red light to channel
monitoring of users content. And there are no sure badlines in there to remove
content that might be illegal. Instead, the commission gives more slack to
platforms to take down posts in good faith, which we call the EU style
Good Samaritan clause. Looking through the global lenses of law making
it's very fascinating to see that while the United States is flirting with the
idea to move away from the Good Samaritan principle in Section 230 of the
Communications Decency Act, so the idea is that platforms can voluntarily remove
content without being held liable for it, the European Union flirts with the idea to
introduce it, to give more options to platforms to act. That being said, the
major differences between the US and the EU is that in Europe, platforms could be
held liable the moment they become aware of the illegality of content. That's an
issue because the Digital Services Act has now introduced a relatively sophisticated
system for user notification, complaint mechanism, dispute resolution options,
which all leads to such awareness about illegality or could lead to such
awareness. It's not quite clear for us how platforms will make use of voluntary
measures to remove content. That being said, we think that the commission's
proposal could have been much worse. And the Parliament's reports on Digital
Services Act have demonstrated that the new parliament is a bit better than the
old one. They have a lot of respect for fundamental rights. So many members of
parliament that are quite fond of the idea to protect civil liberties online. But we
know that this was only the start and we know that we need another joint effort to
ensure that users are not monitored, they are not at the mercy of algorithmic decision
making. And I think Eliska is now going to explain a bit more about all this.
Eliska: Thank you. Thank you very much, Chris. So, we can actually move now
further and unpack a few relevant provisions for everything that has already
been mentioned, mainly in the realm of content moderation and content creation,
which ultimately lies in the core of Digital Services Act. And maybe not to
make it all so abstract... I also have the printed version of the law here with me.
And if you look at it, it's quite an impressive piece of work that the European
Commission did there. And I have to say that even though it's a great start, it
still contains a lot of imperfections. And I will try to summarize those now for you,
especially in the light of our end positioning and as I mean civil societies in general,
because I believe that on all those points, we have a pretty solid agreement
among each other. And what we were actually hoping that Digital Services Act
will do, what it actually does and where we see that we will need to actually
continue working very closely, especially with the members of the European
Parliament in the future, once the draft will actually enter the European
Parliament, which should happen relatively soon. So as it already, as I already
mentioned at the beginning, quite briefly, is how actually DSA distinguishes between
online platforms, which are defined within the scope of the law and between very
large online platforms, which is exactly that scope where all large online
gatekeepers fall into. DSA specificly then distinguishes between obligations or
responsibilities of these actors, some assigning to all of them, including online
platforms and some being extended specifically due to the dominance and
power of these online gatekeepers hold. This is mainly then the case when we
discuss the requirements for transparency. There is a set of
requirements for transparency that apply to online platforms, but then there is
still specific additional set of transparency requirements for larger
online platforms. What DSA does especially and this is the bed which is extremely
relevant for the content moderation practices - it attempts to establish a
harmonized model for notice and action procedure for allegedly illegal content.
Whatever alert red lines before I go into the details on this was that DSA will be
touching only, or trying to regulate only allegedly illegal content and stay away
from vaguely defined content categories such as potentially harmful, but legal
content. There are other ways how the legislation can tackle this content,
mainly through the meaningful transparency requirements, accountability, tackling
issues within the open content recommender systems and algorithmic curation. But we
didn't want the specific category of the content to be included within the scope of
DSA. This is due to the fact that vaguely defined terms that find their way into
legislation always lead to human rights abuse in the future. I could give you
examples from Europe, such as the concept of online harms within the UK, but also as
a global organizations. Both of us, we actually often see how weak terminology
can quickly lead to even over criminalization of speech or suppressing
the decent. Now, if we go back to harmonize notice and action procedure,
what that actually means in practice, as Christoph already mentioned, Europe has
so-called conditional model of intermediate reliability, which is being
provided already and established by the initial legal regime, which is the
e-Commerce Directive under Article 14 of the e-Commerce Directive, which actually
states that unless the platform holds the actual knowledge and according to the
wording of DSA now it's the actual knowledge or awareness about the presence
of illegal content on their platform, they cannot be held liable for such a content.
Now, we were asking for a harmonized procedure regarding notice and action across
the EU for a while, precisely because we wanted to see reinforced legal certainty.
Lack of legal certainty often translated into overremoval of even legitimate
content from the platforms with no public scrutiny. DSA does a good job, it's a good
starting point that actually tries to attempt, to establish such a harmonized
procedure, but it's still lacking behind on many aspects that we consider important
in order to strengthen protection of fundamental rights of users. One of them
is, for instance, that harmonized notice and action procedure, as envisioned by
DSA, is not specifically tailored to different types of categories of user
generated content. And as we know, there were some or many categories of content
that are deeply context dependent, linked to the historical and sociopolitical
context of member state in question. And due to their reliance on the automated
measures, that usually context blind, we are worried that if notice and action
doesn't reflect this aspect in any further ways we will end up again with over
removals of the content. What is probably another huge issue that we are currently
lacking in the draft, even though DSA is trying to create a proper appeal and
enforcement mechanisms and also appeal mechanisms for users and different
alternative dispute settlement of the law draft currently contains, there is no
possibility for content providers, for the user that uploads the filter.. Sorry.
*laughs* That was a nice Freudian slip there. For
a user that actually uploaded content to appeal to directly actually use the
counter notification about that notified content that belongs to that user. Nor
platforms are obliged to actually send the notification to a user prior to any action
that is being taken against that particular notified content. These are for
us a procedural safeguards for fairness that users should have, and currently they
are not being reflected in the draft. However, this is a good start and it's
something that we were pushing for. But I think there are many more aspects that
these notice and action procedures will need to contain in order to truly put
users at first. Now the notice and action procedure is mainly focusing on the
illegal content. But there are ways in the draft where potentially harmful content,
which is still legal - so the content that actually violates the terms of service of
platforms is being mentioned throughout the draft. So for us, it's now at the
moment exactly clear how that will work in practice. So that's why we often use this
phrase that is also put on the slide: good intention with imperfect solutions.
However, I want to emphasize again that this is just the beginning and we will
still have time and space to work very hard on this. Another kind of novel aspect
that DSA actually brings about is already mentioned Good Samaritan Clause, and I
tend to call it the EU model or EU version of Good Samaritan Clause. Good Samaritan
Clause originates in Section 230 of Communication Decency Act, as Cristoph
already mentioned. But within the European realm, it goes hand in hand with this
conditional model of liability which is being preserved within the DSA legal
draft. That was also one of our main ask to preserve this conditional model of
liability and it's great that this time European Commission really listened. Why
we consider the Good Samaritan Clause being important? In the past, when such a
security wasn't enshrined in the law, but it was just somehow vaguely promised to
the commission that if the platform will proactively deploy measures to fight
against the spread of illegal content, they won't be held liable without
acknowledging that through such a use of so-called proactive measures, the platform
could in theory gain the actual knowledge about the existence of such a type of
content on its platform, which would immediately trigger legal liability. This
threat of liability often pushed platforms to the corner so they would rather remove
the content very quickly then to face more serious consequences later on. That's why
we see the importance within the Good Samaritan Clause or the European model of
Good Samaritan Clause, and we are glad that it's currently being part of the
draft. One of the biggest downfalls or one of the biggest disappointments when DSA
finally came out on the 15th of December for us was to see that it's still online
platforms that will remain in charge when it comes to assessing the legality of the
content and deciding what content should be actually restricted and removed from a
platform and what should be available. We often emphasize that it's very important
that the legality of the content is being assessed by the independent judicial
authorities as in line with the rule of law principles. We also do understand that
such a solution creates a big burden on the judicial structure of member states.
Many member states see that as a very expensive solutions, they don't always
want to create a special network, of courts, or e-courts or other forms of
judicial review of the illegal or allegedly illegal content. But we still
wanted to see more public scrutiny, because for us this is truly just the
reaffirmation of already existing status quo, as at the moment and there are many
jurisdictions within the EU and in the EU itself, it's still online platform that
will call the final shots. What, on the other hand, is a positive outcome that
we were also hardly pushing for are the requirements for meaningful transparency.
So to understand better what platforms actually do with the individual pieces of
content that are being shared on these platforms and how actually transparency
can then ultimately empower user. Now, I want to emphasize this because this is
still ongoing debate and we will touch upon those issues in a minute. But we
don't see transparency as a silver bullet to the issues such as amplification of
potentially harmful content or in general that transparency will be enough to
actually hold platforms accountable. Absolutely not. It will never be enough,
but it's a precondition for us to actually seek such solutions in the future. DSA
contains specific requirements for transparency, as I already mentioned, a
set of requirements that will be applicable largely to all online platforms
and then still specific set of requirements on the top of it. That will
be applicable only to very large online platforms so the online gatekeepers. We
appreciate the effort, we see that the list is very promising, but we still think
it could be more ambitious. Both EFF and Access Now put forward a specific set of
requirements for meaningful transparency that are in our positions. And so did EDRi
and other civil society or digital rights activists in this space. And final point
that I'm going to make is the so-called Pandora box of online targeting and
recommender systems. Why do I refer to this as to Pandora Box? When a European
Parliament published its initiative reports on DSA, there are two reports, one
being tabled by JURI Committee and then another one by ENCO, especially the JURI
report contained paragraph 17, which calls out for a better regulation of online
targeting and online advertisements, and specifically calling for a ban of online
targeting and including the Phase-Out that will then lead to a ban. We supported this
paragraph, which at the end was voted for and is the part of the final report.
Nevertheless, we also do understand that these wording of the article has to be
more nuanced in the future. Before I go into the details there, I just want to say
that this part has never made it to DSA. So there is no ban on online targeting or
online advertisement of any sort, which to us, to some extent, it was certainly
disappointing too, we specifically would call for a much more stricter approach
when it comes to behavioral targeting as well as crossside tracking of online
users, but unfortunately, and as we eventually also heard from Commissioner
Vestager, that was simply lag of will or, maybe, too much pressure from other
lobbies in Brussels. And this provision never found its way to the final draft of
DSA. That's the current state of art, we will see what we will manage to achieve
once the DSA will enter the European Parliament. And finally, the law also
contains a specific provision on recommender systems. So the way how the
content is being distributed across platform and how the data of users are
being abused for such a distribution and personalization of user generated content.
In both cases, whether it's online targeting and recommender systems within
the DSA, DSA goes as far as the transparency requirements, the
explainability, but it does very little for returning that control and empowerment
back to the user. So whether user can obtain or opt out from these algorithmic
curation models, how it can actually be optimized if they decide to optimize it?
All of that is at the moment very much left outside of the scope of DSA. And so
that's the issue of interoperability, which is definitely one of the key
issues being currently discussed and made kind of possible hopes in the future for
returning that control and empowerment back to the user. And I keep repeating
this as a mantra, but it's truly the main driving force behind all our initiatives
and the work we do in these fields. So the user and their fundamental rights. And on
that note, I would like to hand over back to Chris, who will explain the issue of
interoperability and how to actually empower you as a user and to strengthen
the protection of fundamental rights further. Chris, it's yours now. Christoph:
Thank you. I think we all know or feel that the Internet has seen better times.
If you look back over the last 20 years, we have seen that transformation was going
on from an open Internet towards a more closed one - monopolization. Big platforms
have built entire ecosystems and it seems that they alone decide who gets to use
them. Those platforms have strong network effects that have pushed platforms or
those platforms into gatekeeper position which made it so easy for them to avoid
any real competition. This is especially true when we think of social media
platforms. This year we celebrate the 20th birthday of the e-Commerce Directive that
Eliska mentioned. The Internet bill that will now be replaced by the Digital
Services Act. We believe it's a very good time now to think and make a choice:
should we give even more power to the big platforms that have created a lot of the
mess in the first place; or should we give the power to the users, give the power
back to the people? For us, the answer is clear. Big tech companies already employ a
wide array of technical measures. They monitor, they remove, they disrespect user
privacy and the idea to turn them into the Internet Police, with a special
license of censoring the speech of users, will only solidify their dominance. So we
wouldn't like that. What we like is to put users in charge over their online
experience. Users should, if we had a say, choose for themselves which kind of
content they can see, what services they can use to talk to their friends and
families. And we believe it's perhaps time to break up those silos, those big
platforms have become to end the dominance over data. One element to achieve this
would be to tackle the targeted ads industry, as Eliska mentioned it, perhaps
to give an actual right to users not to be subject to targeted ads or to give more
choice to use to decide, which content they would like to see or not to see. In
the Digital Services Act, the Commission went for transparency when it comes to ads
and better option for users to decide on the recommended content, which is a start,
we can work with that. Another important element to achieve user autonomy over data
is interoperability. If the European Union really wants to break the power of those
data driven platforms that monopolize the Internet, it needs regulations that
enables users to be in control over the data. We believe that users should be able
to access data, to download data, to move, manipulate their data as they see fit. And
part of that control is to port data from one place to another. But data
portability, which we have under the GDPR is not good enough. And we
see from the GDPR that it's not working in practice. Users should be able
to communicate with friends across platform boundaries, to be able to follow
their favorite content across different platforms without having to create several
accounts. But to put it in other terms, if you upset with the absence of privacy on
Facebook or how the content is moderated on Facebook, you should be able to just
take your data with you using portability options and move to an alternative
platforms, that is a better fit and this without losing touch with your friends who
stay behind, who have not left the incumbent big platform. So what we did for
Digital Services Act is to argue for mandatory interoperability options that
would force Facebook to maintain APIs that let users on other platforms exchange
messages and content with Facebook users. However, if you look in the DSA, we see
that the commission completely missed the mark on interoperability, which is
supposed to be dealt with by related legal act, now it gets complicated. It's the
Digital Markets Act, the DMA, another beautiful acronym. The Digital Markets Act
wants to tackle certain harmful business practices by those gatekeeper platforms,
the very large tech companies that control what is called core services. The core
service is a search engine, a social networking service, a messaging service,
its operating systems and online intermediation services. Like think of how
Amazon controls access to customers for merchants that sell on its platforms or
how the Android and iPhone app stores as chokepoints in delivering mobile software.
And many things we like in the new proposal, the proposal of the Digital
Markets Act, for example there's a ban on mixing data in there that you may wants to
ban gatekeeper's from mixing data from data progress with the data they collect
on the customers. Another rule is to ban cross tying - sort of practices that end
users must sign up for ancillary services. So you should be able to use Android
without having to get a Google account for example. You believe that this is all
good, but the DMA like the DSA is very weak on interoperability. What it does is
to focus on real time data portability instead. So instead of having
interoperable services, users will only be able to send the data from one service to
another like from Facebook to Diaspora, meaning that you would end up having two
accounts instead of one or to quote Cory Doctorow who spoke yesterday already:
"Users would still be subject to the sprawling garbage novela of abusive legalese
Facebook lovably calls its terms of service." We believe that this is not
good enough. And the last slide, you see a quote from the Margrethe Vestager who made
a very good statement last month, that we need trustworthy services, fair use of
data and free speech and an interoperable internet; we fully agree on that. And in
the next months and years, we will work on this to actually happen. However, you can
imagine, it will not be easy. We already see that European Union member states
follow the trend of platforms should systematically check undesirable and
insightful content and share those data with enforcement authorities, which is
even worse. We see an international trend going on to move away from the immunity of
platform for use of content towards a more active stance of those platforms. And we
see that recent terror attacks have fueled ideas that monitoring is a good idea and
end to end encryption is a problem. So whatever will be the result, you can bet
that European Union will want to make the Digital Services Act and the Digital
Markets Act another export model. So this time we want the numbers right in
parliament and the council, we want to help members of parliament to press the
right buttons. And for all this we will need your help, even if it means to learn
yet another acronym or several acronyms after the GDPR. That's it from
our side - we are looking forward to the discussion.Thank you.
Herald: OK, thank you Eliska and
Christoph. There are questions from the internet and the first one is basically
we just have and as you mentioned in your slides, Christoph, the copyright in the
digital single market with both accountability and liability provisions,
you also briefly mentioned, I think even the e-evidence proposal also. How do all
these proposals relate to each other? And especially for a layperson, that is not
into all the Brussels jargon. Christoph: I think Eliska, you raised
your hand, don't you? Eliska: ...more or less unintentionally,
but yeah, kind of that. I can start and then let you Christoph to step in. Yeah,
that's a very, very good question. And this is specifically due to the fact that
when you mention especially online terrorist content regulation, but also
recently proposed interim regulation on child sexual abuse, they.. all these - we
call them sectoral legislation, so kind of a little bit of parting from this
horizontal approach, meaning an approach that tackles all categories of illegal
content in one way, instead of going after specific categories such as online
terrorist content in the separate ways. So it's a little bit paradoxical saying what
is currently also happening at the EU level, because on one hand, we were
promised this systemic regulation that will once for all establish harmonized
approach to combating illegal content online and at the same time, which is
specifically DSA, the Digital Services Act, and at the same time we still see
European Commission allowing for these fundamental rights harmful legislative
proposals happening in these specific sectors such as proposed online
terrorist content regulation or other legislative acts seeking to somehow
regulate specific categories of user generated content. This is quite puzzling
for us as a digital rights activists too, and very often, actually, so I would maybe
separate DSA from this for a moment and say that all of these sectoral
legislations what they have in common is: first of all, continuing these negative
legislative trends that we already described and that we constantly observe
in practice, such as shifting more and more responsibility on online platforms.
And at the same time, what is also very interesting, what they have in common is
the legal basis that they stand on, and that's the legal basis that is rather
connected to the cooperation within the digital single market, even though they
seek to tackle a very particular type of category of content category, which is
manifestly illegal. So logically, if they should have that appropriate legal ground,
it should be something more close to police and judicial cooperation, which we
don't see happening in practice, specifically because there is this idea
that platforms are the best suited to decide how the illegal content will be
tackled in the online space. They can be the fastest, they can be the most
effective. So they should actually have that main decision making powers and
forced into taking those responsibilities which have ever ultimately, according to
the rule of law principle, should and have to be in the hands of the state and public
authorities, preferably judicial authorities. So I would say they are all
bad news for fundamental rights protection of online users, civil rights
organizations, all of us that are on this call today. We're fighting very hard also
against the online service content regulation. There was a lot of damage
control done, especially with the first report that was tabled by the European
Parliament and also now during the last trialogue since the negotiations seems to
be concluded and the outcome is not great. It's far from ideal. And I'm worried that
with other sectoral legislative attempts coming from the European Commission, we
might see the same outcome. It will be very interesting to see how that will
actually then play together with the Digital Services Act, which is trying to
do the exact opposite to actually fix this negative legislative efforts that we see
at the EU level with these sectoral legislation, but also with the member
states at the national level. I could also mention the European Commission reaction
to some national legislative proposals. But Christoph, I would leave that to you
and please step in. Christoph: I think you explained it
perfectly, and the only thing I can supplement here is that if you look at
this move from sectoral legislation, asylum legislation to horizontal
legislation, now back to sectoral legislation - it's a problem, it's a mess.
First, the two sides not very good coordinated which brings troubles for
legal certainty. It makes it very troublesome for platforms to follow up.
And it's problematic for us, for us in the space. We are some sort of lobbyist as
well, just for public interest. But you will have to have to deal with copyright,
with CSAM, with TERREG, with end to end encryption, DSA, DMA and 15 other
parties to pop up content by content. It's very hard to manage to have the capacity
ready to be early in the debate, and it's so important to be early in the debate to
prevent that from happening. And I think that's a huge challenge for us, to have
something for us to reflect to in the next days. How can we join forces better in a
more systematic way in order to really follow up on all those initiatives? That's
for me, a very problematic development. Herald: So in summary it's a mess. So it
is related, but we can't explain how, because it's such a mess. Fair enough.
I have another question for you, Eliska. Someone was asking how the proposed
Good Samaritan clause works compared to.. how it currently works in Germany. But I
think it's a bit unreasonable to expect everyone to know how it works in Germany.
I would rephrase it this as: how does this proposed Good Samaritan clause work
compared to how it is now under the e-Commerce Directive?
Eliska: Thank you very much. Yeah, so a great question again, I think the first if
we put it into the context of the EU law and apologies that I cannot really answer
how - you know, compare the German context - I really don't dare to, I'm not a
German lawyer, so I wouldn't like to step in those waters. But first of all, there
is no Good Samaritan clause per se within the scope of e-Commerce Directive. It did
not really exist within the law. And I'm using the pass sentence now because DSA is
trying to change that. So that level of legal certainty was not really, really
there for the platforms. There was the conditional model of the liability, which
is still preserved within the regulation. But if you think of a Good Samaritan
clause as we know it from the section 230, or let's use that Good Samaritan
clause as an example, because also e-Commerce Directive was actually drafted
as a response to Communication Decency Act that was the legislation that puts things
into motion. So that's the first ultimate point. I explain at the
beginning in my presentation what was then happening in the space of combating
illegal content at the EU level, and especially I would refer to the
communication that the European Commission published, I think, back in 2018, where it
actually encouraged and called on online platforms to proactively engage with
illegal content and use these proactive measures to actually seek an adequate
response to illegal content. Now, to mix that with this conditional model of
liability, which is of course defined by the obtaining actual knowledge by the
platform that created a perfect storm that I already explained. So the platforms knew
that they are kind of pushed by the legislature to actually seek these active
responses to illegal content, often deploying automated measures. But they
didn't have any legal certainty or security on their side that if they do so,
they won't end up ultimately being held legally liable and face legal consequences
as a result of obtaining actual knowledge through those proactive measures that were
kind of the tool, how they could possibly actually obtain that knowledge. Now, what
DSA does, it specifically actually simply states and I think it's Article 6 in the
Digital Services Act, if I'm not mistaken, and I can even open it, it specifically
basically says that platforms can use these proactive measures or, you know,
continue using some tools that actually seek to provide some responses to this
type of content without the fear of being held liable. So it's it's an article which
has approximately, I think, two paragraphs, but it's finally in the
legislation and that means that it will help to reinforce the level of legal
certainty. I would also emphasize that very often in Europe, when we discuss Good
Samaritan clause, and Good Samaritan is actually very unfortunate term, because
it's very much connected to the American legal tradition. But when it's being mixed
up with the conditional model of liability and with the prohibition of general
monitoring, which is still upheld, these are the main principles of the European
intermediary reliability law and the regime that is applicable within the EU,
such a safeguard can be actually beneficial and it won't lead hopefully to
these blanket immunity for online platforms or to this idea that platforms
will be able to do whatever they want with the illegal content without any public
scrutiny, because there are other measures, safeguards and principles in
place as a part of conditional model of liability that we have here in Europe. So
I'm sorry, maybe that was too complicated. Legalistic explanation there. But this is
how these provisions should work in practice. We, of course, have to wait for
the implementation of the law and see how that will turn out. But the main purpose
is that this legal certainty that was lacking until now can finally come to its
existence, which should help us to prevent over removal of legitimate speech from
online platforms. Herald: OK, thank you. I have two other
questions from the Internet about interoperability, and I suppose I should
look at Christoph for them. The last one I'm going to ask first is: would such
interoperability make it much more difficult to combat harassment and
stalking on the Internet? How do you police that kind of misbehavior if it's
across different platforms who are forced to interoperate and also be conduits for
such bad behavior. And I'll come to the earlier question if you've answered this
question Christoph. Christoph: It's a pretty good question.
First, to understand our vision on interoperability is to understand that we
would like to have it between platforms that empower large platforms and the right
of smaller platforms, actually, to make use of interoperability. So it should not
be among the big platforms. So small platforms should be able to connect to the
big platforms. And second, we believe it will help and not make it worse because we
have now a problem of hate speech, we have now a problem of a lack of privacy, we
have now a problem of the attention industry that works with, you know,
certain pictures put in certain frames to trigger the attention of users, because users
don't have a choice of the content moderation practices, users don't have a
choice to see which kind of content should be shown. And users don't have options to
regulate the privacy. The idea of more competitors would be exactly that I can
move to a space, where I'm not harassed and not be made subject to certain content
that hurt my feelings. Right. And that moment I get control. I can choose a
provider that gives me those options and we would like even to go a step further.
Back end interoperability was a start. We believe if users want to, they should be
able to delegate a third party company or piece of a third party software to
interact with the platform on their behalf. So users would have the option to
see a news feed in different order, calibrate their own filters on
misinformation. So in this sense, interoperability can be a great tool,
actually, to tackle hate speech and to sort of negative developments. Of course,
there is a risk to it. I think the risk comes rather from the data industry side
again, that we need to take care not to place one or another data selling
industry on the one that we already face. But for this, we have options as well to
avoid that from happening. But to answer the question, we believe interoperability
is a tool actually to escape from the negative developments you had mentioned.
Herald: Critical counter question for me then, aren't you actually advocating for
just roll your own recommendation engines to be able to do so? Can't you achieve
that without interoperability? Christoph: Sure. Recounter question: Do
you think an average user can accomplish that quite easily? You know, like when we
look at the Internet through the lenses of market competition then we see that it is
the dominance of platforms over data that have created those spaces, those developed
gardens where users have the feeling they are trapped and cannot escape from. And there
are so many alternative options that can not get off the ground because users feel
trapped, don't want to leave their friends behind and don't have options, actually to
have a better moderation system. Of course, you can be creative and, you know, use
plugins and whatever you see fit, but you need to stay within the platform barriers.
But we would like to enable users to actually leave developed garden, go to another
place, but still stay in touch with friends who have made the choice to remain
there. And I think that's perhaps the difference to what you had in mind.
Herald: I have a follow up question. Well, another question from the Internet,
regardless of interoperability, and that is, historically speaking, as soon as the
big players get involved in certain standards, they tend to also shape policy
by being involved in that. How would that be different in the case of
interoperability and specifically mentioned by the person who ask the
question. That Mastodon probably flourishes because nobody else was
involved in setting that standard. Christoph: Ah it's an excellent question.
And we struggled with the question of standards ourselves in our policy paper,
which is our recommendations for European Union to enact certain provisions in the
new Digital Services Act. We abstain from asking to establish new standards like API
standards. We believe it's a bad idea to regulate technology like that. What we
want to do is that big platforms just offer interoperability however they see fit.
We don't want to have a standard that can be either again monopolized or lobbied by
the big platforms. Because then we end up with the standards we already see
which we don't like. But it's a good question. And what we did is with our
policy principles on interoperability to give kind of a food for thought, how we
believe the end version should look like, but the many questions that remain and we
don't know exactly the way how to go there.
Herald: Yeah, I'm sorry of sticking to the topic of interoperability, because most
questions are actually about that. One of the other questions is how do we prevent
this from getting messed up like it happens with PSD2? And for the audience
that don't know about PSD2 - PSD2 is a Directive that forced banks to open up
APIs to other financial service providers, which is also interoperability between
platforms, in this case for banking platforms, which comes with all sorts of
privacy questions that weren't completely thought through when that legislation came
about. Sorry for having this long winded intoduction, Christoph, but I think it was
needed for people that don't know what PSD2 means.
Christoph: It's a good question. Interestingly, we never used PSD2 or the
Telecommunications Act because both have interoperability options as those negative
examples we always used as examples that hey, it's already possible. So you don't
have an excuse to say it's impossible to put it in the law. What is true is that there
is a lot of mess around it. The question of how to avoid the mess, it's a question
of.. Netzpolitik again. So the question of whether policy makers are actually
listening to us or listening to industry lobbyists. So the ones who raised the
question is absolutely right - there's a huge risk for every topic we talk about.
Whether interoperability, whether it's use of control about content, targeted ads,
liability, everything that we believe should be the law, of course, could be
hijacked, could be redesigned in a way that it will lead to more problems than
fewer problems. So, indeed, for every policy question we raise, we need to ask
ourselves, is it worth the fight to risk opening the box of the Pandora? Do we make
it worse? What we said is on that front - we are happy to make a pressure and what
we need to do in the next year is to convince them that we are the right person
to talk to. And that's perhaps a challenge how to make that explicable to policy
makers. So those who ask the questions, I think those should help us to come to
Brussels to the parliament and tell MEPs how it's going to work.
Herald: On that note a question to both of you. Citizen enforcement, I prefer the
term citizen overuses. Would it be helpful to push for amendments in the parliament
for at least the targeting points you both mentioned before? And if so, how?
Eliska: So I guess that I will start just so Christoph can rest a little. So the
question was whether it would be useful to push for those amendments? Was that's
right? Herald: For amendments that cover the
targeting of citizens. Eliska: Absolutely. So there is, of
course, short and long answer as to every question. And so the short answer would be
yes, but given that the wording of such an amendment will be precise and nuanced. We
are still working out our positioning on online targeting and I think we all.. no
one can name those practices that we don't want to see being deployed by platforms
and where we can actually imagine a proper ban on such practices. We have recently
published one of our blog posts where we actually unfold the way of thinking that
Access Now currently, you know, how we are brainstorming about this whole issue.
And as I said, especially those.. that's targeting that uses behavioral data of
users, citizens, then maybe let's go for individuals because they are also obliged
to protect the rights of individuals that are not their citizens. So that's
definitely one form where we can definitely see and will be supporting the
ban and possible phase out that will actually lead to a ban. The same goes for
the cross side tracking of users due to the fact how users data are being abused
again as being the integral part of the business models of these platforms and so
on and so forth. So that's one of the direction we will be definitely taking.
And again, we are inviting all of you to help us out, to brainstorm together with
us, to assess different options, directions that we should take into
consideration and not forget about. But I personally think that this will be one of
the main battles when it comes to DSA, where we will definitely need to be on the
same page and harmonize and joint the forces, because DSA gives us a good ground
at the moment, but it doesn't go far enough. So, yes, definitely the answer is
yes, but given that, we will have a very nuanced position so we know what we are
asking for and we are taking into consideration also those other aspects
that could eventually play out badly in practice. So good intentions are not
enough when it comes to DSA. Herald: Thank you. I think we are slightly
over time, but I've been told beforehand it's OK to do so for a few minutes and
there's three questions that are open. One of one of them, I will answer myself. That
is basically: have the member states responded? And the answer to that is no.
The member states have not taken any position. And two others, I think are
quite interesting and important from a techy perspective. One is: is there
anything you see that might affect current decentralized platforms like the
Fediverse, Mastodon? And the other is: will any review of the data protection,
sorry, the Database Protection Directive affect make the search engines and
interact of these again? Christoph: Perhaps I jump in and Eliska,
you take over. First, member states have given an opinion actually on DSA, there
have been one-two official submissions, plus joint letters, plus discussions in
council on whether the DSA was presented. I have some nice protocols, which showed
the different attitude of member states towards it. So for us, it also means we
need to work straight away with the council to ensure that the package would
be good. What was the question? Ah, yes, I think the answer to the question depends
on the what lawyers call materials scope applications whether it would apply to
those platform models at all. But Eliska you can help me out here. You have
always criticized for the e-Commerce Directive that it was not quite clear how
it would relate to first non profit platforms. And many of these alternative
platforms are like that, because there was this issue of providing a service against
remuneration and what's not quite clear what it means. Would it apply to Wikipedia
if you get like donations would have applied to a blogger if you have, like,
pop ups, ads or something like that. So that's, I think, one huge question. And
the second question is, in as much those new due diligence obligation would force
alternative platforms, governance models to redesign the interfaces. And those are
open question for us. We have not analyzed that in detail, but we see that.. we have
worried that it would not only impact the large platforms, but many others as well.
What do you think Eliska? Eliska: Yeah, I can only agree and
especially regarding the non profit question. Yeah, this is also or was and
always been one of our main asks for nonprofit organizations. And actually it's
not quite clear how that will play out now in practice. By the way, how DSA standing,
because at the moment it actually speaks about online platforms and then it speaks
about very large online platforms, but what it will be and how it will impact
nonprofit organizations, whether these are bloggers or organizations like us civil
rights organizations that remain to be seen. I also know that the European Court
of Human Rights and its jurisprudence try to establish some principles for the
nonprofit since Delfi AS versus Estonia and then with the empty e-decision and the
Swedish case that followed afterwards. But I'm not sure how well it was actually
elaborated later on. But this is something we will be definitely looking at and
working on further and regarding the impact on the smaller players and also at
the interface idea, this is still something we are actually also wondering
about and thinking how this will turn out in practice. And we are hoping to actually
develop our positioning further on these issues as well, because we actually
started working, all of us on DSA and on our recommendations already. I think a
year ago, maybe a year and a half ago when we were working just with the leagues that
Politico or other media platforms in Brussels were actually sharing with us.
And we were working with the bits and pieces and trying to put our thinking
together. Now we have the draft and I think we need to do another round of very
detailed thinking. What will be ultimately our position or what will be those
recommendations and amendments in the European Parliament we will be supporting
and pushing for. So it's a period of hard work for all of us. Not mentioning
that I always say that, you know, we stand against a huge lobby power that is going
to be and is constantly being exercised by these private actors. But I also have to
say that we had a very good cooperation with the European Commission throughout
the process. And I think that I can say that on behalf of all of us, that we feel
that the European Commission really listen this time. So, yeah, more question marks
than answers here from me, I think. Herald: This is fine with me, not knowing
something is fine. I think we're definitely run out of time. Thank you both
for being here. Well, enjoy the 2D online world and the Congress. Thank you. That
wraps the session up for us. Thank you all. Christoph: Thank you.
Eliska: Thank you very much. Bye.
*music*
Subtitles created by c3subtitles.de in the year 2021. Join, and help us!