Tag Archives: intermediary liability

Information Law and Policy Centre’s annual workshop highlights new challenges in balancing competing human rights

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Our annual workshop and lecture – held earlier this month – brought together a wide range of legal academics, lawyers, policy-makers and interested parties to discuss the future of human rights and digital information control.

A number of key themes emerged in our panel sessions including the tensions present in balancing Article 8 and Article 10 rights; the new algorithmic and informational power of commercial actors; the challenges for law enforcement; the liability of online intermediaries; and future technological developments.

The following write up of the event offers a very brief summary report of each panel and of Rosemary Jay’s evening lecture.

Morning Session

Panel A: Social media, online privacy and shaming

Helen James and Emma Nottingham (University of Winchester) began the panel by presenting their research (with Marion Oswald) into the legal and ethical issues raised by the depiction of young children in broadcast TV programmes such as The Secret Life of 4, 5 and 6 Year Olds. They were also concerned with the live-tweeting which accompanied these programmes, noting that very abusive tweets could be directed towards children taking part in the programmes.

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Full Programme: Annual Workshop and Evening Lecture

Restricted and Redacted: Where now for human rights and digital information control?

The full programme for the Information Law and Policy Centre’s annual workshop and lecture on Wednesday 9th November 2016 is now available (see below).

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, Bloomsbury’s Communications Law journal.

To register for the afternoon workshop please visit this Eventbrite page.
To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

PROGRAMME

10.45am: REGISTRATION AND COFFEE 

11.15am: Welcome

  • Judith Townend, University of Sussex
  • Paul Wragg, University of Leeds
  • Julian Harris, Institute of Advanced Legal Studies, University of London

11.30am-1pm: PANEL 1 – choice between A and B

Panel A: Social media, online privacy and shaming

Chair: Asma Vranaki, Queen Mary University of London

  1. David Mangan, City, University of London, Dissecting Social Media: Audience and Authorship
  2. Marion Oswald, Helen James, Emma Nottingham, University of Winchester, The not-so-secret life of five year olds: Legal and ethical issues relating to disclosure of information and the depiction of children on broadcast and social media
  3. Maria Run Bjarnadottir, Ministry of the Interior in Iceland, University of Sussex, Does the internet limit human rights protection? The case of revenge porn
  4. Tara Beattie, University of Durham, Censoring online sexuality – A non-heteronormative, feminist perspective

Panel B: Access to Information and protecting the public interest

Chair: Judith Townend, University of Sussex

  1. Ellen P. Goodman, Rutgers University, Obstacles to Using Freedom of Information Laws to Unpack Public/Private Deployments of Algorithmic Reasoning in the Public Sphere
  2. Felipe Romero-Moreno, University of Hertfordshire, ‘Notice and staydown’, the use of content identification and filtering technology posing a fundamental threat to human rights
  3. Vigjilenca Abazi, Maastricht University, Mapping Whistleblowing Protection in Europe: Information Flows in the Public Interest

1-2pm: LUNCH 

2-3.30pm: PANEL 2 – choice between A and B

Panel A: Data protection and surveillance

Chair: Nora Ni Loideain, University of Cambridge

  1. Jiahong Chen, University of Edinburgh, How the Best Laid Plans Go Awry: The (Unsolved) Issues of Applicable Law in the General Data Protection Regulation
  2. Jessica Cruzatti-Flavius, University of Massachusetts, The Human Hard Drive: Name Erasure and the Rebranding of Human Beings
  3. Wenlong Li, University of Edinburgh, Right to Data Portability (RDP)
  4. Ewan Sutherland, Wits University, Wire-tapping in the regulatory state – changing times, changing mores

Panel B: Technology, power and governance

Chair: Chris Marsden, University of Sussex

  1. Monica Horten, London School of Economics, How Internet structures create closure for freedom of expression – an exploration of human rights online in the context of structural power theory
  2. Perry Keller, King’s College, London, Bringing algorithmic governance to the smart city
  3. Marion Oswald, University of Winchester and Jamie Grace, Sheffield Hallam University, Intelligence, policing and the use of algorithmic analysis – initial conclusions from a survey of UK police forces using freedom of information requests as a research methodology
  4. Allison Holmes, Kent University, Private Actor or Public Authority? How the Status of Communications Service Providers affects Human Rights

3.30-5pm: PANEL 3 – choice between A and B

Panel A: Intermediary Liability

Chair: Christina Angelopoulos, University of Cambridge

  1. Judit Bayer, Miskolc University, Freedom and Diversity on the Internet: Liability of Intermediaries for Third Party Content
  2. Mélanie Dulong de Rosnay, Félix Tréguer, CNRS-Sorbonne Institute for Communication Sciences and Federica Giovanella, University of Trento, Intermediary Liability and Community Wireless Networks Design Shaping
  3. David Rolph, University of Sydney, Liability of Search Engines for Publication of Defamatory Matter: An Australian Perspective

Panel B: Privacy and anonymity online

Chair: Paul Wragg, University of Leeds

  1. Gavin Phillipson, University of Durham, Threesome injuncted: has the Supreme Court turned the tide against the media in online privacy cases?
  2. Fiona Brimblecombe, University of Durham, European Privacy Law
  3. James Griffin, University of Exeter and Annika Jones, University of Durham, The future of privacy in a world of 3D printing

5-6pm: TEA BREAK / STRETCH YOUR LEGS

6-8pm: EVENING LECTURE AND DRINKS

Lecture Title: Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…): The impact of the General Data Protection Regulation on use of biometrics.

Biometrics are touted as one of the next big things in the connected world. Specific reference to biometrics and genetic data has been included for the first time in the General Data Protection Regulation. How does this affect existing provisions? Will the impact of the Regulation be to encourage or to restrict the development of biometric technology?

  • Speaker: Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice.
  • Chair: Professor Lorna Woods, University of Essex
  • Respondents: Professor Andrea Matwyshyn, Northeastern University and Mr James Michael, IALS

EU Copyright Reform: Outside the Safe Harbours, Intermediary Liability Capsizes into Incoherence

In the following piece, Christina Angelopoulos, lecturer in intellectual property law at the University of Cambridge, analyses the aspects of the Commission’s new proposal for the digital single market directive that are relevant to intermediary liability. The post was originally published on the Kluwer Copyright Blog.

As has by now been extensively reported, on 14th September the European Commission released its new copyright reform package. Prominent within this is its proposal for a new Directive on Copyright in the Digital Single Market.

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The proposal contains an array of controversial offerings, but from the perspective of this intermediary liability blogger, the most interesting provision is the proposed Article 13 on ‘Certain uses of protected content by online services’. This is highly problematic in a number of different ways.

The Supposed Problem

As the Communication on a fair, efficient and competitive European copyright-based economy in the Digital Single Market (which was released in parallel to the proposal) explains, the new Article 13 is intended to address what in Brussels parlance over the past year has come to be termed the ‘value gap’. This refers to the idea that revenues generated from the online use of copyright-protected content are being unfairly distributed between the different players in the value chain of online publishing. A distinction is usually drawn in this regard between ad-funded platforms, such as YouTube, Dailymotion and Vimeo, and subscription-funded platforms, such as Spotify or Netflix. While the latter require the consent of copyright-holders to operate legally, the business model of the former revolves around user-created content (UCC). As a result, they tend to focus not on copyright licensing, but on notice-and-takedown systems, which allow them to tackle any unwanted infringements of copyright snuck onto their websites by their users. [To continue reading this post on the Kluwer Copyright Blog, click here.]

Information Law and Policy Centre Annual Lecture and Workshop

An afternoon workshop and evening lecture to be given by leading information and data protection lawyer Rosemary Jay.

Restricted and Redacted: Where now for human rights and digital information control?

The Information Law and Policy Centre is delighted to announce that bookings are now open for its annual workshop and lecture on Wednesday 9th November 2016, this year supported by Bloomsbury’s Communications Law journal.

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, although registration will be required as places are limited.

To register for the afternoon workshop please visit this Eventbrite page.

To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

AFTERNOON WORKSHOP/SEMINAR 
11am – 5pm (lunch and refreshments provided)

For the afternoon part of this event we have an excellent set of presentations lined up that consider information law and policy in the context of human rights. Speakers will offer an original perspective on the way in which information and data interact with legal rights and principles relating to free expression, privacy, data protection, reputation, copyright, national security, anti-discrimination and open justice.

We will be considering topics such as internet intermediary liability, investigatory and surveillance powers, media regulation, freedom of information, the EU General Data Protection Regulation, whistleblower protection, and ‘anti-extremism’ policy. The full programme will be released in October.

EVENING LECTURE BY ROSEMARY JAY, HUNTON & WILLIAMS
6pm-7.30pm (followed by reception)

The afternoon workshop will be followed by a keynote lecture to be given by Rosemary Jay, senior consultant attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice. Continue reading

C-494/15 – Tommy Hilfiger: No Difference between Online and Real World Marketplaces for IP Enforcement

In the following piece, Christina Angelopoulos, post-doc researcher at the Information Law and Policy Centre of the University of London, analyses the recent judgment of the CJEU in case C-494/15 Tommy Hilfiger. The post was originally published on the Kluwer Copyright Blog.

On 7 July 2016, the CJEU (Court of Justice of the European Union) handed down its decision in Tommy Hilfiger (case C-494/15). The case concerned the imposition of an injunction on Delta Center, a company that sublets sales areas in the “Prague Market Halls” (Pražská tržnice) to traders, after it was found that counterfeit goods were sold in the marketplace.

The requested injunction would require that Delta Center refrain from: a) renting space to persons previously found by the courts to have engaged in trademark infringement; b) include terms in their rental contracts that oblige market traders to refrain from infringement; and c) publish an apology for past infringements by third party traders. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

Notice-and-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability

On 11 April 2016, Christina Angelopoulos of the Information Law and Policy Centre, Institute for Advanced Legal Studies and Stijn Smet of the Human Rights Centre, Ghent University gave a presentation at the BILETA Conference (which took place this year at the University of Hertfordshire) on their paper entitled “Notice-And-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability”.

The abstract of the presentation (which can be found on the BILETA website here) is as follows:

Abstract

Notice-and-action has been the preferred answer to questions of intermediary liability for alleged unlawful online information for over 15 years: first adopted, in the form of “notice-and-takedown”, in the US in 1998 as part of the DMCA safe harbours , the concept quickly spread across the globe in a variety of different mutations, including “notice-and-notice” (adopted in Canada), “notice-and-disconnection” (pioneered in France), notice-and-stay-down (still popular in Germany), “notice-and-judicial-take-down” (encountered in Chile) and notice-wait-and-takedown (a Japanese invention).

Following the general trend, the EU introduced a basic “notice-and-takedown” regime in 2000 by means of the hosting immunity of Article 14 of the E-Commerce Directive. While this provision has proven undoubtedly useful, it is also sparse on the details, creating legal uncertainty and undermining its harmonising power. In addition, it applies horizontally, i.e. to all areas of law, leaving no room for appropriate gradations. As a result of its alleged shortcomings, calls to reformulate the E-Commerce system into a more elaborate notice-and-action procedure have been made. These calls seem to have found the Commission’s ear: a series of Communications (most recently in December 2015 on “a modern, more European copyright framework”) show the EU’s interest in developing a more intricate European notice-and-action system.

At the same time, the European discussion on intermediary liability has moved from the dissection of processes to the analysis of their relationship with underlying law. Particular emphasis has herein been placed on the relevance of fundamental rights. The question of intermediary liability for users’ activities of copyright infringement, defamation, hate speech or child pornography has been reinterpreted as a quintessential question of fundamental rights clashes. The notion of a “fair balance” between competing fundamental rights has emerged as central to addressing such clashes in the relevant case law of Europe’s highest courts – the CJEU and the ECtHR. Although the amassing case law has begun to put some flesh on the bones of the once skeletal references to this “fair balance”, considerable gaps remain, while no general standard is discernible.

Based on the authors’ PhD projects, respectively on the harmonisation of European intermediary liability and the resolution of conflicts between human rights, this paper shall aim to bring some much-needed clarity to the debate by answering the following questions: where might the fair balance lie in intermediary liability cases and can notice-and-action measures help secure that balance? To this end, we will first provide legal theoretical insights on the precise meaning of the notion “fair balance”. We will argue that achieving a “fair balance” in intermediary liability cases requires a search for a viable compromise between all fundamental rights at stake, instead of a solution under which one right “trumps” the others. Having set the theoretical stage, we will then proceed to examine various notice-and-action mechanisms to determine whether or not they contribute to reaching the desired compromise. In doing so, we will differentiate between distinct situations, arguing – for instance – that notice-and-notice suffices in copyright cases, while notice-and-takedown is suitable for defamation cases and a no notice/automatic takedown obligation is appropriate for child pornography.

The slides are available below.

Bileta – Smet Angelopoulos

The full paper will be published later this year.

CJEU AG suggests that free Wi-Fi providers may not be ordered to password protect their networks

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the Opinion of the Advocate General Szpunar recently handed down in Mc Fadden. The post was originally published on the Kluwer Copyright Blog.

On 16 March 2016 the CJEU’s Advocate General Szpunar handed down his Opinion in case C-484/14, Mc Fadden. The case concerns the liability of Tobias Mc Fadden, the owner of a business selling lighting and sound systems in Munich. Mr Mc Fadden operates a Wi-Fi hotspot on the business’ premises, deliberately left unprotected by a password, so as to enable free public access to the internet. In September 2010, that internet connection was used for the unlawful download of a musical work by one of the network’s anonymous users. The owner of the relevant copyright, Sony Music, decided to bring an action against Mc Fadden, seeking both damages and an injunction. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

MTE v Hungary: New ECtHR Judgment on Intermediary Liability and Freedom of Expression

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the recent judgment of the ECtHR in MTE v Hungary. The post was originally published on the Kluwer Copyright Blog.

On 2 February 2016, the European Court of Human Rights (ECtHR) delivered its first post-Delfi judgment on the liability of online service providers for the unlawful speech of others. Somewhat puzzlingly, the Court reached the opposite conclusion from that of last summer’s controversial Grand Chamber ruling, this time finding that a violation of Article 10 of the European Convention on Human Rights (ECHR) had occurred through the imposition of liability on the applicant providers. While in principle therefore the judgment is good news for both internet intermediaries and their end-users, the ruling does little to dispel the legal uncertainty that plagues the area: attempting to reverse and head off in the right direction, the Court still finds itself falling over the stumbling blocks it set out for itself last year. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]