Posts Tagged ‘EU’

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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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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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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

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computer says noThe European Commission says Internet hosts should pre-censor everything we upload to the Internet for copyright violations. The UK agrees.

Tell the UK’s Intellectual Property Office (IPO) we don’t want rights holders to monitor and filter the Internet!

The European Commission has published plans to force Internet companies to filter everything we upload in case it infringes copyright laws. The UK’s Intellectual Property Office wants our views on the European Commission’s plans. The UK Government is minded to support the plans if they can get them to work.

This could block Downfall parodies, campaign videos, TV clips, memes, profile pics — anything that appears to reuse copyright content, even if it is legal to do so.

We need to stop this censorious, privacy-invading, anti-innovation proposal. Users of social media, photo, music and video sharing sites would all be hit hard.

Any company that lets you upload content to the Internet would check everything you upload against a database of copyright works – a massive violation of privacy in order to create this censorship regime.

If you want to insist on your right to publish, you’d have to supply your name and address and agree that you can be prosecuted by the rightsholder. That will put most people off taking the risk, even if they are within their rights to do so. And if rightsholder think that websites aren’t monitoring their users’ uploads closely enough, they can take those websites to court too.

Sign the  petition from action.openrightsgroup.org

Read more EU Censorship News at MelonFarmers.co.uk

Open Rights Group has criticised the European Commission’s proposals for the Directive on Copyright in the Single Market, published today.

Open Rights Group logo Executive Director Jim Killock said:

Thousands of EU citizens responded to the consultation on copyright, only for the Commission to ignore their concerns in favour of industry. The Commission’s proposals would fail to harmonise copyright law and create a fair system for Internet users, creators and rights holders. Instead we could see new regressive rights that compel private companies to police the Internet on behalf of rights holders.

Failure to introduce EU wide freedom of panorama exception

The failure to introduce a harmonised exception for freedom of panorama is both a lost opportunity and a direct snub to the thousands of people who responded to the Commission’s consultation on this. It appears that the Commission has simply ignored their opinions and made no mention of freedom of panorama in its proposals. Freedom of panorama is a copyright exception that allows members of the public to share pictures they’ve taken of public buildings and art. While this right exists in the UK, many European countries do not have this exception, which means that innocuous holiday snaps can infringe copyright.

Compelling intermediaries to filter content

The proposals aim to compel intermediaries, such as YouTube, to prevent works that infringe copyright from appearing on their services through content identification technologies . This is effect would force sites to police their platforms on behalf of rights holders through filters and other technologies that are a blunt instrument.

Such proposals could place unreasonable burdens on smaller operators and reduce innovation among EU tech companies. They will certainly lead to a greater number of incorrect takedowns, as “Robocopy” takedowns cannot take account of fair quotation, parody, or even use of public domain material.

These plans could undermine the UK’s hard-won right to parody copyright works. Folk songs and classical performances by amateurs are often misidentified and removed as infringing ‘copies’ of performances of professional musicians for instance.

New ancillary copyright for news publishers

The proposals suggest a new right for news publishers, designed to prevent search engines and news aggregators from reproducing snippets at the expense of publishers. Although, this is designed to protect the media industry, it had a disastrous impact on news websites when similar proposals were introduced in Spain and Germany. It is also disproportionate that the proposed right would last 20 years, given that it applies to news.

Notes

Open Rights Group is the UK’s leading grass roots digital rights organisation, campaigning for the right to privacy and free speech.

ORG’s FAQs document on freedom of panorama is available here .

ORG is part of Copyright for Creativity, which campaigns for a new European approach to copyright.

Meanwhile TorrentFreak has been speaking to Pirate Party MEP Julia Reda about the impossibility of the proposals for anyone except for US media giants. TorrentFreak reports:

torrentfreak logo Today, the European Commission published its long-awaited proposal to modernize the EU’s copyright law. Among other things, it will require online services to install mandatory piracy filters. While the Commission intends to strengthen the position of copyright holders, opponents warn that it will do more harm than good.

Despite earlier suggestions that geo-blocking would be banned for streaming portals such as Netflix, these ideas haven’t made it into the final text. Instead, it introduces a wide range of reforms that improve the position of rights holders.

One of the suggestions that has a lot of people worried is Article 13, which requires online services to police pirated content. This means that online services, which deal with large volumes of user-uploaded content, must use fingerprinting and filtering mechanisms to block copyright infringing files. The Commission demands:

The Commission proposal obliges such service providers to take appropriate and proportionate measures to ensure the protection of user-uploaded works, for example by putting in place content recognition technologies.

This could, for example, be similar to the Content-ID system YouTube has in place, which hasn’t been without controversy itself. While the Commission stresses that small content platforms won’t be subject to the requirement, the proposal doesn’t define what small means. It also fails to define what appropriate or effective content recognition systems are, creating a fair bit of uncertainty.

The Commission, however, notes that the changes are needed to reinforce the negotiating position of copyright holders, so they can sign licensing agreements with services that provide access to user uploaded content.

Perhaps not surprisingly, this language is directly aligned with recent calls from various music industry organizations. Just a few month ago the BPI asked for new legislation to prevent platforms like YouTube abusing safe harbor protections in order to create royalty havens . With the current proposal, this wish has been partly granted.

TorrentFreak spoke with Pirate Party Member of Parliament Julia Reda who is fiercely against mandatory piracy filters.

There are countless problems with this approach. First of all, Google spent upwards of $60 million on the development of ContentID. Asking every startup or community project to make the same kind of investment is ludicrous.

Most services that deal with user-uploaded content can’t invest millions into content recognition technologies so they would have to license it from others such as YouTube. This will only increase the already dominant positions of the major players.

In addition, she points out that automated systems often lead to overt mistakes and are poorly equipped to deal with the finer nuances of copyright.

Just because part of a copyright-protected work shows up in a video, that doesn’t mean that the new work constitutes a copyright infringement.

There are numerous exceptions to copyright such as parody or quotation â?� different in every EU country â?� that could justify the re-use of part of a protected work. An algorithm can’t detect that. It will take down lots of legal remixes and mashups, thus stifling freedom of expression.

A valid comment, as we witnessed ourselves just a few days ago when one of our perfectly legal videos was inaccurately flagged as a copyright infringement.

YouTube aside, Reda stresses that there are many other platforms to which automated recognition systems are not well suited. Wikipedia, for example, which uses mostly Creative Commons licensed content, or services such as DeviantArt which hosts user-uploaded artwork, or MuseScore that hosts sheet music.

There is no technology available that would reliably detect copyright infringements in these formats. The Commission is asking Internet companies to do the impossible, thus endangering collaborative communities on the Internet as well as European startups.

And there is already a campaign in place against the EU’s nasty proposals. The SaveTheLink campaign via OpenMedia writes:

save the link The EU Commission has officially released some of the worst copyright laws in the world, including unprecedented new Link Tax powers for publishing giants.

Despite opposition from over 100,000 Internet users and dozens of other advocacy groups, the EU Commission has charged ahead with its wrong-headed plan. This will affect Internet users around the world.

This comes on the heels of a major court ruling that undermined our right to use hyperlinks. 4 This means it’s more important than ever that EU decision-makers do what they can to stop this dangerous #LinkTax plan. 5

The link tax could make some of your favourite content virtually disappear from search engines. Users all over the world will be impacted.

Join us now at SaveTheLink.org to give decision-makers a clear resounding ‘no to the link tax’.

Read more EU Censorship News at MelonFarmers.co.uk

European Court of Justice In a case which threatens to cause turmoil for thousands if not millions of websites, the Court of Justice of the European Union decided today that a website that merely links to material that infringes copyright, can itself be found guilty of copyright infringement, provided only that the operator knew or could reasonably have known that the material was infringing. Worse, they will be presumed to know of this if the links are provided for “the pursuit of financial gain”.

The case, GS Media BV v. Sanoma, concerned a Dutch news website, GeenStijl , that linked to leaked pre-publication photos from Playboy magazine, as well as publishing a thumbnail of one of them. The photos were hosted not by GeenStijl itself but at first by an Australian image hosting website, then later by Imageshack, and subsequently still other web hosts, with GeenStijl updating the links as the copyright owner had the photos taken down from one image host after another.

The court’s press release [PDF] spins this decision in such a positive light that much reporting on the case, including that by Reuters , gets it wrong, and assumes that only for-profit websites are affected by the decision. To be clear, that’s not the case. Even a non-profit website or individual who links to infringing content can be liable for infringing copyright if they knew that the material was infringing, for example after receiving notice of this from the copyright holder. And anyway, the definition of “financial gain” is broad enough to encompass any website, like GeenStijl, that runs ads.

This terrible ruling is hard to fathom given that the court accepted “that hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network”, and that “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders … have consented to … posting on the internet”. Nevertheless, that’s exactly what the judgment effectively requires website operators to do, if they are to avoid the risk of being found to have knowingly linked to infringing content.

There are also many times when knowingly linking to something that is infringing is entirely legitimate. For example, a post calling out a plagiarized news article might link to the original article and to the plagiarized one, so that readers can compare and judge for themselves. According to this judgment, the author of that post could themselves be liable for copyright infringement for linking to the plagiarized article–madness.

This judgment is a gift to copyright holders, who now have a vastly expanded array of targets against which to bring copyright infringement lawsuits. The result will be that websites operating in Europe will be much more reticent to allow external hyperlinks, and may even remove historical material that contains such links, in fear of punishing liability.