AG Europa/E-Commerce Konsultation

Hier sind die Beispielantworten zur Konsultation Public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC).

Zwar sind die hier gegebenen Antworten englisch, aber es ist ebenfalls möglich in Deutsch zu antworten.

Die wichtigen Fragen finden sich unter "Issue 5: Interpretation of the provisions concerning intermediary liability in the Directive".

Issue 5: Interpretation of the provisions concerning intermediary liability in the Directive

56. What practical experience do you have regarding the procedures for notice and take-down? Have they worked correctly? If not, why not, in your view?

So far I (as a user) had two very unpleasant take-down experiences.

In the first instance, an injunction by a local court in Berlin in 2006 took the German domain http://wikipedia.de, belonging to the popular on line encyclopedia wikipedia, off line as part of of civil court case regarding a single article in said encyclopedia. While the domain removal at the time proved ineffectual, it is worth considering what would have happened, had it really kept people from accessing the German wikipedia (as intended).

A single civil court case would have caused a massive loss of productivity by making millions of users lose access to one of the most important Internet resources. This could only have happened because the judge handing down the injunction either had not considered the fallout that his decision would cause, or had decided that the matter of his case was worth it (which it, from my point of view, it clearly was not).

While things might have changed to the better since 2006, there is still an important lesson to be drawn from this: Free access to information has become such an important part of our lives, that liberally handing out take down notices to hosters and access providers can cause problems for vast numbers of Internet users unrelated to the reason that may have made a take down necessary.

The second case was a lot scarier than the first one because it gives a glimpse of the uncertainty that will affect all European Internet users, should ISPs be forced to police the content that they provide access to.

In 2007, when I was a customer of German ISP Arcor, that ISP was forced, also by injunction, to block access to the pornographic site You-porn for all of its users. The reason for this was that the site (as pretty much every other web site on the Internet) did not conform to the formal requirements of German laws for the protection of minors, which required identification using an ID card. While this blockade did not affect me directly, it set a precedent for being locked out from something for which I had paid.

When I signed the contract with my ISP, I expected to get access to the Internet, that is, all of the Internet. But now my ISP had started to block access to a certain kind of sites. (You have to keep in mind that, had the decision been upheld, this would have affected every single site containing sexuality not hosted in Germany.)

So my contract, binding me to the ISP for two full years, had de facto been unilaterally changed by removing one service and possibly soon a significant chunk of the Internet. I'm pretty sure that I would have had to wait out the whole two years because at the time I simply didn't have the time or money to sue them to get out of it.

Should ISPs ever become liable for the content that they provide access to, they will start blocking all content that may be dangerous to them. Of course they will be changing their blocking criteria all the time because the Internet tends to evolve around such barriers. By that point the contract that a user like me signs with an ISP will be all but meaningless. You just won't be able to know what you are buying because it can change at any time in any way. Needless to say that this is completely unacceptable for us, the users.

58. Are you aware of cases where national authorities or legal bodies have imposed general monitoring or filtering obligations?

See answer to Question 56

60. Do you think that the introduction of technical standards for filtering would make a useful contribution to combating counterfeiting and piracy, or could it, on the contrary make matters worse?

It is very important to separate counterfeiting and piracy, because trying to treat them the same way will ultimately result in disaster. Fighting the counterfeiting of goods is something that is in principle possible, because they have a presence in physical reality. The impounding of faked goods is a significant but still appropriate punishment for those trying to make money off them.

"Piracy" on the other hand is something that will never go away. Since the Internet is ultimately made up of the people that use it, it has the potential for evolutionary adaption. All kinds of roadblocks to the information flow will sooner or later be circumvented. You could actually control and monitor every single bit that goes over the networks and people would start using encryption. You could actually switch the whole thing off and people would start trading USB sticks filled with music. Therefore, since all that filtering mechanisms would ultimately bring are the unintended impact they have on "legal" information flow, they will not only make matters worse.

The same holds for monitoring. Unleashing a legion of lawyers to sue everybody caught in the act of piracy through some extensive monitoring mechanism only has two possible outcomes:

• Damages and legal fees to be paid by the infringer reflect the actual damage caused, meaning they will not be a deterrent at all.
• Damages and legal fees are high enough to be a deterrent, but then they will not be appropriate. People will adapt and move to encryption/off line sharing.

67. Do you think that the prohibition to impose a general obligation to monitor is challenged by the obligations placed by administrative or legal authorities to service providers, with the aim of preventing law infringements? If yes, why?

I'm not sure I understand the question but I think the answer is that yes, they are challenged. The real problem with this is that administrative and legal authorities are trying to outsource the policing of the Internet to the service providers, probably motivated by the desire to save money.

To us, the users, this is completely unacceptable. Only democratically controlled institutions, such as the administrations and their organs themselves, should perform the responsibilities of public administration. If it is to expensive to enforce a law on the Internet, then the question should be asked if the potential benefits of its enforcement really warrants its existence.

And some things, such as fighting the abuse of children, are the core purpose of our police forces and therefore should be done by them and only them.

69. Do you think that a lack of investment in law enforcement with regard to the Internet is one reason for the counterfeiting and piracy problem? Please detail your answer.

There is definitely a lack of qualified law enforcement to fight the hard crimes that have seeped into the Internet from the real world (see also answer question 67, last two paragraphs).

Because I don't know about the current situation regarding counterfeiting, I'll only comment on piracy.

Whenever humans interact socially, their norms or "ways of doing business" tend to evolutionary adapt to a mode of operation that balances the interests of all parties involved. This is why humans adapt fast to changed circumstances in their lives and this is also why a market economy works better than a planned economy.

Through the emergence of the global information network, our ability to exchange information has changed drastically in the last years. Our culture is currently in the process of adapting to this change. Because earlier circumstances allowed the treatment of some information as if it where a manufactured product, those people that made a business out of doing so now are rightfully afraid of not being able to continue their business models.

Trying to carve into stone these old business models for our new information age will ultimately not save them, but can tie up precious resources needed elsewhere. No matter what happens, people will continue to pay for the generation of information and more money will be made through the creation of information than was ever before. Not piracy is the problem, but the view of the world that gives rise to the concept of piracy is.