Self-regulation and its potential pitfalls when it comes to circumvention of due process by pushing enforcement to intermediaries was the subject of a seminar held in Brussels today (7 December).

“Do we really want to build a society where we have one rule offline based around standards and long established principles of due process and independent judgment, but no such rule online, just because we have an intermediary there?“ Malcolm Hutty, president of EuroISPA, the European Association of Internet Service Providers, asked during the seminar.

The seminar was organised by Liberal Member of European Parliament Marietje Schaake.

The intermediaries are the focus of ongoing discussions about how to create more effective approaches to internet regulation. Schaake recently released an open letter to the members of the US Congress, urging them to vote against two draft US laws that are seen as pushing intermediaries to faster block websites based upon provisions that she said are “too vague,” and which are making whole websites inaccessible not only in the US but worldwide. “Companies wishing to offer online services will be forced to monitor all communication on their platforms and filter anything which could possibly be an infringement of IPR.”

Werner Stengg, head of the “Online Services” Unit at the Internal Market and Service Directorate, said that the liability exemption for internet service providers in the EU E-Commerce Directive would be kept in place unchanged. The Commission had decided to not open up the Directive in the current review process. Instead, it is preparing a Communication to clarify the notice-and-takedown procedure that is part of the E-Commerce Directive. According to article 14 of the E-Commerce Directive, providers that store third party content can be held liable if they do not block access to content after they have been notified of its illegality.

By explaining more clearly what quality such notices must have and what would happen if legal content was taken down, or what constitutes slow or fast take-down, the Commission could potentially introduce clarifications and add to transparency and fairness, Stengg explained during the meeting in answer to a question from Katarzyna Szymielewicz, human rights lawyer and co-founder and executive director of the Polish Panoptykon Foundation. Szymielewicz warned that courts in Poland have been struggling for years to interpret the liability regime of the Directive. They were the very questions of what kind of platforms and providers were covered by the liability regime in the Directive and the remedies for users that had their legal content deleted by big content providers who played it safe on allegations of illegality.

That intermediaries would be in a “perfectly balanced position to make rulings on illegality” was one the ten myths about “privatized policing and law enforcement” presented by Joe McNamee, political analyst at European Digital Rights (EDRi). McNamee referred back to the US case of Wikileaks in the US, where Visa, Mastercard, Paypal and Amazon all feared reputational damage from providing service to Wikileaks once it was accused by high level US politicians of being a terrorist organization. “As a result, no formal charges of illegal behaviour were ever made against Wikileaks,” McNamee said, yet “their web hosting, their domain name (wikileaks.org) and donations via payment companies were all blocked or removed.”

Another myth was that there are no unintended consequences for the online market by private policing, he said. The fact that intermediaries are increasingly coerced into interfering with traffic for the interests of other businesses while they at the same time were asked not to interfere for their own interests to adhere to network neutrality standards, according to McNamee is a “blatant and untenable contradiction that will ultimately threaten the online ecosystem.”

Work on takedown notices could get rather demanding for small companies. Schaake reported that she got the number of 20,000 takedown requests by a rather small enterprise in her country. This also would create a push to have automatic monitoring at some point, Jérémie Zimmermann, founder of La Quadrature du Net, warned. He said at the end of the meeting that he had gotten all the more concerned over what was discussed as “self-regulation.”

“I am just wondering,” he said, “how can we possibly protect the right to fair trial?. Several speakers also warned that the European Commission could not under its own rules support “self”-regulation where it interferes with fundamental rights like freedom of expression or privacy.

For the European Commission, co-regulatory regimes are complementary to classical legislation and judiciary channels, Nicole Dewandre, advisor on stakeholder issues at the DG Information Society, informed the seminar participants. Transparently and openly developed codes of conduct addressing “shared objectives” could be an addition and made use of where legislation was not dynamic enough.

“It can be a good way to engage people who know best how to solve some of the challenges we face on the internet,” Dewandre said. It could also engage the public in keeping up to standards: “We have a civil society to stay on the ball all of the time,” she said. Dewandre also announced that Digital Agenda Commissioner Neelie Kroes would in speeches on 8 December at the Internet Freedom conference in The Hague make announcements about a platform by the EU to support democratic internet self-governance.

Hutty in the end tried to explain that self-governance for him is something distinct from what seems to be on the mind of those who favour outsourcing enforcement or legislating. Self-regulation is only real self-regulation when ultimate decisions on scope and procedures are decided by those who are self-regulating. There is a need for commitment, capability and competence on the side of the self-regulators, Hutty said, as not every problem is apt to be dealt with by self-regulators.

“It is easy to say that there is no fundamental right at stake,” Hutty said to Chris Smith from the Composer and Song Writer Association ECSA, and Chris Ancliff, general counsel for Warner Music Group, both of whom underlined the responsibility of the providers. Smith said that as a composer, he himself feels the pressure, with his music downloaded over a hundred thousand times, earning him not a dollar. “You say that he is stealing your content,” remarked Hutty. “But maybe he has a license.”

Should self-regulatory bodies really take on the role of judging such competing claims? he asked. The question will become even harder given the fact that there are not only the IP rights holders knocking on the door, but other requests that might be made to intermediaries as well, from counter-terrorist actors, to fighters against xenophobia, financial service regulators, or regulators of medicine.

“What to do about all that bad stuff?,” Hutty asked. Should intermediaries online not keep to the rule of law and due process, just “because we simply are complying with orders by anybody who comes to us?”