The study found that the term “self-regulation” is being inappropriately used to designate what amount to appeals to monitor, judge and sanction allegedly illegal websites and consumer behaviour. Proposed legislation and “non-binding guidelines” are forcing intermediaries into a position in which they can no longer avail themselves of legal protections — where they are obliged, in effect, “to police private online communications, often in blatant disregard of legal safeguards and even to impose sanctions for alleged infringements”.
“This fundamental change in the concept of “self-regulation” represents a danger for the core values of the Internet and the benefits that these values provide to society.” Should Internet intermediaries become “privatized enforcement systems”? Companies “come under intense pressure in relation to individual incidents that attract the interest of politicians and/or the press”. The measures recently taken by Visa, Mastercard, PayPal and Everydns against Wikileaks are a case in point.
The author catalogues international proposals that aim to persuade industry to engage in a vigilante system of monitoring and sanctioning, and include:
- a series of ongoing ‘public-private dialogues’ organized by the European Commission to encourage hosting providers to engage in “extra-judicial rulings of illegality”
- a 2010 European Commission funding proposal incentivising companies to engage in “self-regulatory” Internet blocking of allegedly illegal online material
- discussions launched by the Council of Europe’s Assembly in 2010 whose “intention appears to be to increase the legal obligations of intermediaries” despite the fact that this would be “contrary both to the letter and the spirit of the 2003 Declaration on freedom of communication on the Internet”
- 2010 OECD discussions, which aim to increase the responsibility of Internet intermediaries in advancing “public policy objectives”
- the Anti-Counterfeiting Trade Agreement (ACTA), whose draft contains provisions that would encourage or coerce ISPs into policing their networks and enforcing extra-judicial sanctions, where they deem it to be appropriate
- EU/India and EU/Korea bilateral free trade agreements, whose provisions would change the EU acquis on intermediary liability
The encouragement of extra-legal measures to limit access to information, proactive policing of the Internet and the exclusion of law enforcement authorities in investigating serious crimes are factors that contribute to the weakening of the rule of law and democracy.
While these appear to be regressive steps away from freedom, the NGO’s study found, for instance, that “the European Commission appears far from perturbed by the dangers for fundamental rights of this approach and appears keen to export the approach”.
“This process is gradually strangling the openness that is at the core of the Internet. This openness has enhanced democracy, has shaken dictatorships and has boosted economies worldwide. This openness is what we will lose through privatised policing of the Internet by private companies – what will we gain?”