Archive for the ‘EU’ Category

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European Parliament logoThe European Parliament has officially adopted the EU Directive on Combatting Terrorism , which is designed to give police and prosecutors across the EU the ability to fight and counter terrorism more effectively and ensure a common response to the evolving terrorist threat. The Directive includes measures against public provocation online , which state that Member States must ensure the prompt removal of online content constituting a public provocation to commit a terrorist offence that is hosted in their territory, and must also endeavour to obtain the removal of such content hosted outside of their territory. If removing the content is not feasible, Member States may block access to the content for internet users within their territory (but only after first attempting to remove the content at source).

The Directive states that such measures of removal and blocking must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate, and that users are informed of the reason for the restriction. These safeguards must also include the possibility of judicial redress.

Importantly, the Directive also states that removal or blocking of terrorist content should be without prejudice to service providers’ protections under the EU e-Commerce Directive. This means that no general obligation can be imposed on service providers to monitor the information which they transmit or store, nor can they be obliged to actively seek facts or circumstances indicating the presence of terrorist content. Furthermore, hosting service providers will not be held liable for hosting terrorist content as long as they do not have actual knowledge of illegal activity or information and are not aware of the facts or circumstances from which the activity or information is apparent. This will be of great relief to Internet intermediaries.

The Directive must now be transposed into national law by Member States within 18 months. However, it will not apply to the UK, Ireland and Denmark who have opted out of such measures.

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 Young people in France will soon be allowed to watch real sex scenes at the cinema, as the government relaxes its film classification laws.Culture minister Audrey Azoulay is set to announce that under-18s will no longer be automatically blocked from seeing a film that contains non-simulated sex. The 18 certificate will now only be automatically applied to films that include sex or violence that could seriously hurt the sensitivity of minors , the ministry of culture said.

It’s believed Ms Azoulay will bring in the change, which overturns a decree from 2003, by early February before she leaves office.

France’s cinema classification board was last summer forced to slap an over 18 rating on the 2015 film Love after a lawsuit from a far-right group, which complained about its 3D-animated non-simulated sex scenes in Gaspar Noe’s Love .

Presumably films such as Love and Lars von Trier’s Nymphomaniac will now be 16 rated. The French 18 rating has, before this hiccup been reserved for hardcore pornography.

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The European Court of Justice has passed judgement on several linked cases in Europe requiring that ISP retain extensive records of all phone and internet communications. This includes a challenge by Labour’s Tom Watson. The court wrote in a press release:

european court of justice logoThe Members States may not impose a general obligation to retain data on providers of electronic communications services

EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary. Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU.

In today’s judgment, the Court’s answer is that EU law precludes national legislation that prescribes general and indiscriminate retention of data.

The Court confirms first that the national measures at issue fall within the scope of the directive. The protection of the confidentiality of electronic communications and related traffic data guaranteed by the directive, applies to the measures taken by all persons other than users, whether by private persons or bodies, or by State bodies.

Next, the Court finds that while that directive enables Member States to restrict the scope of the obligation to ensure the confidentiality of communications and related traffic data, it cannot justify the exception to that obligation, and in particular to the prohibition on storage of data laid down by that directive, becoming the rule.

Further, the Court states that, in accordance with its settled case-law, the protection of the fundamental right to respect for private life requires that derogations from the protection of personal data should apply only in so far as is strictly necessary. The Court applies that case-law to the rules governing the retention of data and those governing access to the retained data.

The Court states that, with respect to retention, the retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.

The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

The Court states that legislation prescribing a general and indiscriminate retention of data does not require there to be any relationship between the data which must be retained and a threat to public security and is not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime. Such national legislation therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the Charter.

The Court makes clear however that the directive does not preclude national legislation from imposing a targeted retention of data for the purpose of fighting serious crime, provided that such retention of data is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, limited to what is strictly necessary. The Court states that any national legislation to that effect must be clear and precise and must provide for sufficient guarantees of the protection of data against risks of misuse. The legislation must indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted, thereby ensuring that the scope of that measure is, in practice, actually limited to what is strictly necessary. In particular, such legislation must be based on objective evidence which makes it possible to identify the persons whose data is likely to reveal a link with serious criminal offences, to contribute to fighting serious crime or to preventing a serious risk to public security.

As regards the access of the competent national authorities to the retained data, the Court confirms that the national legislation concerned cannot be limited to requiring that access should be for one of the objectives referred to in the directive, even if that objective is to fight serious crime, but must also lay down the substantive and procedural conditions governing the access of the competent national authorities to the retained data. That legislation must be based on objective criteria in order to define the circumstances and conditions under which the competent national authorities are to be granted access to the data. Access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime. However, in particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be inferred that that data might, in a specific case, make an effective contribution to combating such activities.

Further, the Court considers that it is essential that access to retained data should, except in cases of urgency, be subject to prior review carried out by either a court or an independent body. In addition, the competent national authorities to whom access to retained data has been granted must notify the persons concerned of that fact.

Given the quantity of retained data, the sensitivity of that data and the risk of unlawful access to it, the national legislation must make provision for that data to be retained within the EU and for the irreversible destruction of the data at the end of the retention period.

The view of the authorities

david andersonDavid Anderson, the Independent Reviewer of Terrorism Legislation gives a lucid response outlining the government’s case for mass surveillance. However the official justification is easily summarised as it clearly assists in the detection of serious crime. He simply does not mention that the government having justified grabbing the data on grounds of serious crime detection, will share it willy nilly with all sorts of government departments for their own convenience, way beyond the reasons set out in the official justification.

And when the authorities talk about their fight against ‘serious’ crime, recent governments have been updating legislation to redefine practically all crimes as ‘serious’ crimes. Eg possessing a single spliff may in practice be a trivial crime, but the law on possession has a high maximum sentence that qualifies it as a ‘serious’ crime. It does not become trivial until it goes to court and the a trivia punishment has been handed down. So using mass snooping data would be easily justified to track down trivial drug users.

See  article from terrorismlegislationreviewer.independent.gov.uk

The Open Rights Group comments

See  article from openrightsgroup.org

open rights group 2016 logoThe judgment relates to a case brought by Deputy Leader of the Labour Party, Tom Watson MP, over intrusive data retention powers. The ruling says that:

  • – Blanket data retention is not permissible
  • – Access to data must be authorised by an independent body
  • – Only data belonging to people who are suspected of serious crimes can be accessed
  • – Individuals need to be notified if their data is accessed.

At present, none of these conditions are met by UK law.

Open Rights Group intervened in the case together with Privacy International, arguing that the Data Retention and Investigatory Powers Act (DRIPA), rushed through parliament in 2014, was incompatible with EU law. While the Judgment will no longer affect DRIPA, which expires at the end of 2016, it has major implications for the Investigatory Powers Act.

Executive Director Jim Killock said:

The CJEU has sent a clear message to the UK Government: blanket surveillance of our communications is intrusive and unacceptable in a democracy.

The Government knew this judgment was coming but Theresa May was determined to push through her snoopers’ charter regardless. The Government must act quickly to re-write the IPA or be prepared to go to court again.

Data retention powers in the Investigatory Powers Act will come into effect on 30 Dec 2016. These mean that ISPs and mobile phone providers can be obliged to keep data about our communications, including a record of the websites we visit and the apps we use. This data can be accessed by the police but also a wide range of organisations like the Food Standards Agency, the Health and Safety Executive and the Department of Health.

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france senate logoFrance is considering appointing an official internet ombudsman to investigate complaints about online material in order to prevent excessive censorship and preserve free speech. A bill establishing a content qualification assessment procedure has been tabled in the French senate.

Dan Shefets, a Danish lawyer explained one of the issues targeted by the bill:

ISPs face both penal and civil liability as soon as they are made aware of allegedly illicit content. One consequence of such liability is that smaller companies take down such content for fear of later sanctions.

The aim is to provide a simple procedure that will support firms operating online who are uncertain of their legal liabilities and to prevent over-zealous removal or censorship of material merely because it is the subject of a complaint. It could be copied by other European jurisdictions.

The idea is that a rapid response from the internet ombudsman would either order the material to be taken down or allow it to remain. As long as ISPs complied with the rulings, they would not face any fine or punishment.

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spd cdu logoLeading German MPs have called for online ‘fake news’ campaigns to be made a crime. Patrick Sensburg, a senior MP in Angela Merkel’s Christian Democratic Union (CDU) party, said:

Targeted disinformation to destabilise a state should be a criminal offence. We need to consider whether there should be some sort of ‘test site’ that reveals and identifies propaganda pages.

The call was backed by his party colleague Ansgar Heveling, the chairman of the German parliament’s influential internal affairs committee aying:

We last saw disinformation campaigns during the Cold War, now they have clearly been revived with new media opportunities. The law already offers options, such as a slander or defamation. But I think a criminal sentence is more appropriate when it is a targeted campaign.

German intelligence has warned that Russia is seeking to influence next year’s German elections via propaganda distributed via the internet, partcularly social media. Russia has been accused of deliberately using socialbots , automated software masqueraring as real people, to promote ‘fake news’ stories on social media.

Mrs Merkel’s current coalition partners and main rival in next year’s elections, the Social Democratic Party (SPD), have also called for a cross-party alliance against ‘fake news’ stories. Sigmar Gabriel, the SPD leader called for

Democratic solidarity against manipulative socialbots and an alliance against ‘fake news’.

Thorsten Schäfer-Gümbel of the SPD added:

If there is any doubt about the authenticity of any information, we should refrain from attacking our political opponents with it.

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kodi fully loadedSelling media players with pirate add-ons violates EU law, according to a recommendation from Advocate General Campos S31nchez-Bordona.He issued the advice in a landmark case over the legality of pre-loaded XBMC/Kodi devices, which are widely sold across Europe. Whether users of these players also liable depends on whether they know that the content is infringing. While Kodi itself is a neutral platform, there are lots of add-ons available that turn it into a pirate’s heaven.

In Europe, the European Court of Justice is currently handling a landmark case that should provide more clarity on the legality of set-top boxes that are sold with links to infringing content.

The issue was raised in a case between Dutch anti-piracy group BREIN and the Filmspeler.nl store, which sells piracy configured media players. While these devices don’t host any infringing content, they ship with add-ons that make it very easy to watch infringing content.

The Dutch District Court referred the case to the EU Court of Justice, and the Advocate General (AG) Campos S31nchez-Bordona issued his recommendation to the Court. The AG concluded that selling a media player with the knowledge that it links to infringing material, constitutes a communication to the public, which makes it copyright infringing.

Whether the users of these devices are also acting unlawfully is a different question. According to the AG it would be logical to conclude that, when offering devices with pirate add-ons is illegal, using them would be too:

In my opinion, if the key factor, in the case of a person who inserts a hyperlink without pursuing a profit, is knowledge [206] that the protected work is available on the internet unlawfully, it would be difficult not to extend that criterion to a person who merely makes use of that hyperlink, also without pursuing a profit.

The Advocate General’s advice is often crucial, but not binding. It is expected that the EU Court of Justice will issue its final verdict in this case early next year.

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european commission logoThe European Commission has called on tech companies such as Twitter, Facebook, and other major names to implement more aggressively measures in order to censor online hate speech. The alternative is to face new EU legislation that would force the tech companies to censor more quickly.The Financial Times reports that a study commissioned by the EU justice commissioner, Vera Jourova, found that YouTube, Google, Microsoft, Twitter, and Facebook have struggled to comply with the hate speech voluntary code of conduct that was announced earlier this year. Amid national security concerns and heightened racial tensions, mostly resulting from unpopular EU refugee policies.

In Germany, the government-led effort has been particularly aggressive. Germany is one of the European nations where the ongoing refugee crisis has reinvigorated the far-right and sparked a backlash against government policy. Reuter reports that Heiko Maas, the German Justice Minister, recently said that Facebook should be made liable for any hate speech published on its social media platform and it should be treated as a media company.

According to The Verge, Google, Twitter, Facebook and Microsoft agreed in a code of conduct announced in May to review and respond within 24 hours to the majority of hate speech complaints. However, only 40% of the recorded incidents have been reviewed within 24 hours, according to the commission’s report. That figure rose to 80% after 48 hours.

According to PCMag, two advocacy groups have criticized those efforts in France. In May, the two rights groups announced their plans to sue Google, Twitter, and Facebook for failing to remove from their platforms homophobic, racist and other hateful posts. News articles have so far failed to point out that maybe some of these groups are making some false claims about  material being censorable. Perhaps the media companies were right to not remove all of the posts reported.

On Thursday, Dec. 8, EU justice ministers will meet to discuss the report’s findings. H