This year saw two huge victories for digital activism: against SOPA in the US, and against ACTA in the EU. The big question is now: what will be the next moves of those behind SOPA and ACTA as they seek to regain the initiative? For SOPA, we've had a clue in the call for a "Son of SOPA" from the US Chamber of Commerce. But what about the European Commission?
Although it is supposedly waiting for the European Court of Justice to rule on the compatibility or otherwise of ACTA with European law, that's more a matter of saving face -- even a positive result there is not going to bring ACTA back in its original form. But two public consultations from the Commission that are currently open for comments share a common theme that points to one possible approach to bringing in some of ACTA's ideas through other means: the increased use of extrajudicial punishments.
The first one, which closes soon -- on 5 September -- concerns Europe's e-commerce directive. But its title makes clear that the consultation is actually much more tightly focused on one particular aspect. As "A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries" suggests, the consultation is really about trying to stop online sharing. Although the use of the word "clean" is clearly intended to suggest that this is about removing extreme material like child pornography, the detailed questions reveal that the central concern is taking down unauthorized copies of legal content.
The method for achieving that is what the European Commission calls "notice and action" -- broadly similar to the DCMA's "notice and takedown" approach. The Commission tries to suggests that such "notice and action" has always been part of the e-commerce directive, but as Monica Horten points out in a recent post, that's not true:
the Commisson appears to be trying to re-write history. It says that Article 14 [of the e-commerce directive] forms the basis for Notice and Action procedures. That was certainly not the intention of Article 14.
The E-commerce directive, with its provisions for mere conduit and exemptions on the liabiilty was the result of a political compromise thrashed out in 2000 between the ISP industry and others, such as the copyright industries, who wanted it to incorporate a notice and takedown regime. However, that notion of notice and takedown was explicitly rejected.
Some of the questions in the e-commerce consultation give the impression that what the European Commission would like to see are voluntary notice-and-action agreements between service providers and media companies that would make allegedly infringing material simply disappear without any judicial process or appeals. It's the perfect solution, since it doesn't require new legislation, and is based on the service providers' fear that if they don't go along with this approach they will find themselves liable for the infringing activities of their customers.
This move to "voluntary" extrajudicial punishments is confirmed by the other consultation, which closes at the end of the month, and goes by the innocent-sounding name of "Code for Effective Open Voluntarism: Good design principles for self- and co-regulation and other multistakeholder actions" (pdf). It is couched in the very vaguest terms, exemplified by this extraordinarily opaque question:
Please share your knowledge, ideas and opinions about how best to ensure that voluntarism receives its appropriate
share of attention in the policy-making toolbox. How best can we address the grey area of self-regulation that are not quite
as purely autonomous as the wording in the 2003 Inter-institutional Agreement on better lawmaking implies, and yet has none
of the characteristics required in that Agreement for a system to qualify as co-regulation, and how best to give a new momentum
to self- and co-regulation and open voluntarism to ensure that they are duly considered and practiced when they appear to be
the most efficient route to the societal benefits in point. This does NOT mean voluntarism should substitute for lawmaking and
regulation in any systematic manner, rather making the best possible use of voluntarism is critical to a highly effective policy
approach. Please use the text box below or upload any additional relevant material.
Even though this comes across as harmless bureaucratic nonsense, it conceals a deadly serious intent: to shift from rules based strictly on those laid down by the relevant laws, to one "making the best possible use of voluntarism." Translated into English, it means that where the European Commission can't push through the legislation or treaties that it wants (as with ACTA), it will encourage ad-hoc "voluntary" agreements and self-regulation that achieve the same aim (as the e-commerce directive consultation seems to be pushing for).
It's a clever tack to take, because it is hard to motivate people to oppose something that is so ill-defined and therefore apparently unthreatening -- even the name "voluntarism" sounds rather appealing, especially compared to the more honest description of "extrajudicial punishment". But the danger lies in that very vagueness, which allows all kinds of rules and behavior that, if proposed in the normal way as traditional legislation, would be completely unacceptable and fiercely resisted.
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