Month: February 2013

Fight against online paedo-pornography: to-do and not-to-do list

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Immagine

A case of web-blocking occurred in Italy is re-opening the discussion about what should be done in order to fight efficiently and definively child-pornography in the Internet.

Yesterday 14 February 2013 the Italian police imposed the block of the domain name 25.media.tumblr.com, an archive used for images uploaded on a blogging platform. The decision was taken because of the likely existence of paedo-pornographic content on the website. In Italy there is a specific police agency, the so-called CNCPO (National Centre for the Fight against Online Pedopornography) managing a black list of websites which are deemed to host pedopornographic material. Normally, when the Italian police finds such illicit content in the web, the suspected website is added to the list and ISPs are immediately notified to block access to the related domain. The police agency operates straight on the basis of evidences, without previous court authorisation, however subsequent jurisdictional review is always admitted.

In the case at stake, it is clear that the blocking measure had overreaching effects, because access has been denied to any kind of content existing on the platform. People holding or looking for licit content got into troubles and did not have a clear and manageable procedure to disable the block. Even now, while writing the present post and people are discussing in the Internet how to circumvent the block, it is not clear yet whether the block has been finally resolved.

This event, and the related confusion caused in the Italian market, seems to be an interesting opportunity for a general re-thinking of the overall matter.

Child-pornography is an horrible crime and when occurring in the Internet shall be addressed via effective and secure repressive measures. In this respect, European ISPs have been longly claiming that website-blocking is not an appropriate instrument, because it can be easily circumvented through specific technologies available in the market at cheap prices. In other words, web-blocking does not work with respect to people seriosuly committed to watch and exchange  paedo-pornographic content (i.e. paedophiles and other criminals), while it may works for people accidentally and unintentionally falling onto such material (children, teachers, families and so on). In addition, web-blocking involve collateral and problematic damages, such as blocking access to licit content uploaded in the same website.

The only effective way to fight child  pornography in the Internet consists in removing illicit content at the source, i.e. deleting the original files hosted in the servers. Such measure permits to definitively destroy paedo-pornographic content in the web and also to get closer to the criminals making use or profit of it. In comparison to that, web-blocking is just like putting the garbage under the carpet.

And so, why police and many politicians, in Italy but also abroad, insist so much with web-blocking rather than hosting removal?

Web-blocking appears to be an easy solution for the police, because it consists in just sending (normally via fax) an order to the ISPs to block access to a website. Politicians claim to have taken measures against an horrible phenomenon. Citizens and electors may have the perception that the problem has been finally solved, because the paedo-pornographic content apparently disappeared. However and unfortunately, such horrible content is still online and accessible, as explained above.

To sum up, only content removal works effectively, however it requires better organization, because, in case the illicit content is hosted abroad, policies and authorities of different countries must be able to cooperate promptly and effectively. Statistics show that paedopornographic content is mostly hosted within the EU or in the US, therefore improved international cooperation is needed and should be possible.

The recent European Directive 2011/92/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography reflects the suggested approach. Pursuant to its article 25(1), Member States shall take the necessary measures to ensure the prompt removal of web pages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.

In addition to that, as a faculty and not as an obligation (article 25(2) Member States may also enforce web-blocking, subject however to a number of safeguards.

Directive 2011/92/EU must be transposed into national law by Member States, including Italy, by the end of 2013.

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Beside Italy, fight against child pornography in the Internet is addressed in major European countries in various means.

In France a recent legislation (so-called Loppsi law of February 2011)requires ISPs to block access, immediately and without a court order, to sites included on a blacklist set up by an ad hoc agency. Notably, since 2008 ISPs were committed, by way of a voluntarily agreement, to block websites containing paedophile content (and other illicit material such as content related to terrorism and racial hatred).

In United Kingdom the solution is similar, however it is managed by way of self-regulation. A private body, the Internet Watch Foundation, runs a child sexual abuse blacklist on the basis of which ISPs block access to those websites (on a voluntary basis).

In Germany the measures to be taken consist in content removal, since the 2010 law on combating child pornography (focussing on website blocking) was repealed in 2011.

Also in Spain the repression against paedo-pornographic content consists in hosting removal. There were initiatives, in the Parliament and also in the public opinion, to address the problem also via other means, however to time no further legislation has been adopted.

Europe: no continent for copyright reform

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The European Union seems to produce plenty of initiatives and ideas in the area of copyright in the digital world. Recently, an unusual team consisting of 3 European commissioners (Barnier, Kroes and Vassiliou) set out the actions to ensure that copyright framework stays fit for purpose in the digital environment. A communication adopted in late December 2012 identified the areas of analysis, debate and (possibly) solutions to be discussed with stakeholders: cross-borders barriers; user-generated content; audiovisual and culturale heritage; text and data mining. In parallel, the European Commission will work on its on-going review of the EU copyright framework, based on market studies and impact assessment and legal drafting work, with a view to a decision in 2014 whether to table the resulting legislative reform proposals.

The problem with such initiatives is that they represent the umpteenth “problems setting” exercise in a digital world which is running and changing faster than the heads of Brussels believe. Instead of a clear an immediate action, the Commission is engaging in continued analyses over the digital sector with the aim to collect best practices, encourage voluntarily agreements and eventually come out with some proposals. Since this process may be completed only at the end of the 5-years mandate (2014), then it will up to the new Commission (in 2015) to eventually act. But the new Commission will not be bound by the mere proposals suggested by the former one (unless a formal proposal is tabled and approved before the end of the mandate, which is very unlikely).

In other words, while the debate is going on, concrete results are unlikely to occur in a reasonable time. This is really disappointing, since the need to reform the copyright in the online environment is urgent and old, as it was already invoked and identified in due time by many stakeholders (and in fact there is a mention thereof even in the European Digital Agenda in 2010). The question is why  an entire Commission’s mandate (2010-2014) was not sufficient to provide a solution. There are many reasons for that and in fact the answer is complex.

Firstly, one should consider that the competence for a copyright reform became a matter for internal confrontation within the offices of the Commission. Thus, the involvement of 3 European commissioners in the same project reflect tensions and search for a compromise. Mr. Barnier, the European Commissioner for the Internal Market, remains cleary competent for the copyright reform, however this power must be split with others now, although on the basis of a vagous political agreement rather than on a clear distribution of competences. In general, a decision-maker would never be happy about such a solution: however, if there is some resistance to take a decision, then this complex architecture may become an alibi.

Secondly, since the start of Barnier’s mandate in 2010, his offices have been permanently and strongly lobbied by the copyright industry aiming at solving the problems of the digital market with the unique instrument of repression. According to copyright industry, piracy is the main problem to address in the digital economy and therefore repressive measures are justified, such as: internet filtering; website blocking; Internet disconnection; consumers’ fines; public pillory;  and so on. The Barnier’s offices have never been too keen to follow this path, also considering the opposite view (and analysis) of consumers, civil society and telecom industry. However, since the copyright industry is the natural constituency of DG Internal Market, the offices tried  to convince the telco industry and other concerned stakeholders to enforce on a voluntarily basis some of repressive measures recommended by the copyright holders. The idea did not work out, however: consumers associations did not join the discussion (they likely felt a trap), while the telco industry refused to sign agreements which would create obligations and liabilities not envisaged in the relevant European directives. The civil society was never really involved in the debate.

Thirdly, an unexpected court tsunami dramatically changed the balance of the debate. Between 2011 and 2012 the Cort of Justice of the European Union destroyed the legal paradise of the copyright industry.  With the Sabam/ Scarlet and Sabam Netlog cases the European judges decided that repressive measures, such as filtering for instance, are in general disproportionate, contrary to privacy principles and fundamental rights in general, and also illegal vis-à-vis the freedom of business of the telecom operators. Such new jurisprudence completely unbalanced the debate: the copyright industry, which for long time have been attacking on the basis that repression is the solution for everything, had to step back and it started a positions defensive war. Thus, since repression was not possible anylonger, they decided to resist at any cost against any other proposal, including the reform of copyright.

Finally: the panic, i.e. the ACTA and the ITU debates on Internet copyright and Internet freedom. Irrespective of the merits of these treaties, it became clear that such matters are politically sensitive and politicians must be very prudent when proposing regulations. ACTA failed because the initial untrasparent negotiations constituted an original sin which was never cleaned up, even when the last versions of the treaty had solved most of the reasons of concerns.  The same lack of transparency of procedures as well as clarity of intentions  was the cause of the collapse of the ITU agreements in Dubai in December 2012. The European Commission learned the lesson and became very prudent.

All the above give us a key of comprehension of the current scenario. While a structural rethinking of copyright for the digital sector is urgently needed, as it is clear since years, Barnier does not seem adamant to complete his term with a reform. The new wave of analyses, studies and workshops, about problems and possible solutions (which have been partially already debated in the past) are legitimate but may also become instrumental to delay decisions. Kroes is taking part to this exercise because she needs to show care for her stakeholders (telcos and Internet users), while she is reinforcing her competences and profile. Mrs Vassiliou, bringing the cultural diversity as a valuable resource of the EU but also as an alibi for not going too far, completes the family picture.