Joris van Hoboken

Yesterday I borrowed a tent and I just started to finalize the slides for my presentation at HAR 2009, the Dutch Hacker Camp. I will speak about censorship in the search engine context, coming Thursday, August 13th, 20:00, Dutch time. Everybody who managed to get a ticket (the event was sold out in one day), please feel free to join me after dinner in the Monty Hall!

Rosalie Marshall reports for V3.co.uk that the Global Network Initiative, which was launched in the end of 2008, still did not find qualified staff. The result is that the initiative is failing to really take off. What could stand in the way of finding a qualified director, if the network of participating companies, non- profits and research institutions includes some of the biggest names in their fields?

As the principles that have been adopted by the initiative could probably help to bring this global discussion about freedom of expression and privacy in a global environment to a higher level, this is quite a pity.

Our German neighbors are about to vote about a controversial legislative package introducing mandatory internet censorship at the network level. Netzpolitik has an excellent overview of the political debate until now. AK-Zensur, the Working Group on Internet Filtering and Censorship, has a comprehensive overview of arguments against the proposals. Germany would be the first EU country to adopt mandatory Internet filtering for Internet access providers. Some ISPs in some other European countries already filter on the basis of black lists provided to them by government agencies and/or private organizations. Here is part of Markus Beckedahl’s account of the action against the proposed censorship:

The net community did not only oppose the governments plans, but also made constructive suggestions how to deal with the problem of child pornography without introducing a censorship architecture and circumcising constitutional freedoms. The working group on censorship demonstrated the alternatives for instance by actually removing over 60 websites containing child pornographic content in 12 hours, simply by emailing the international providers who then removed this content from the net. The sites were identified through the black lists of other countries documented on Wikileaks. This demonstration underlines the protesters main arguments: instead of effectively investing time and efforts to have illegal content removed from the internet, the German government is choosing censorship and blocking – an easy and dangerous way out. The greatest fear of the protesters is that once in place, the infrastructure will be used to censor other forms of unwanted content, not only child pornography. German politicians already seem to be lining up with their wish-list of content to be censored in future – the suggestions ranging form gambling sites, Muslim web pages, “killer games”, and the music industry cheering up with the thought of finally banning pirate bay and p2p.

You can find a detailed linklist of the zensursula-debate here (in german).

In an important decision the French Constitutional Court has declared the core elements of the proposed three strikes law in France (Hadopi) unconstitutional, considering the freedom of expression and communication, the presumption of innocence, the right to privacy and confidentiality of communications.

This puts further pressure on the Council of Ministers to respect the EP’s adoption of amendment 138, requiring member states to respect the fundamental rights of internet end-users in the context of internet access. The Dutch minister of economic affairs recently wrote a letter to the Dutch parliament, stating the Dutch government did not consider the three strikes strategy to be acceptable. The letter also refers to the new (constitutonally problematic) Dutch notice and takedown code of conduct (my translation):

In the Dutch context, a procedure to deal with end-users with bad intentions is also not necessary, because, partly at the government’s urging, we have adopted a code of conduct on the basis of which internet providers, at the initiative of law enforcement authorities, take action themselves against criminal activity such as child pornography (notice and takedown code of conduct). It will have to be clear that the amendment does not interfere with this code of conduct. The Netherlands wants further clarification of the amendment before it can take a definitive point of view. In particular, it will have to become clear in which cases there should be a prior judicial decision and ion which cases not.

The Dutch government expects the Council to reject the Telecom package as adopted by the EP and the negotiations in third reading to be restricted to amendment 138.

This is a really great lecture! Julie Cohen manages to touch upon almost everything I am interested in, in about half an hour.

The motivation (in Dutch) of the preliminary judgment of the Court in Amsterdam about the liability of a website for a wrong suggestion in a Google search result snippet has been published. The problem was that a combination of two sentences ’suggested’ that defendant Zwartepoorte, a car salesman, was bankrupt.

As was to be expected, the judge concludes that its judgment is very case specific. It clarifies that it involves a balancing act between the freedom of expression of websites and the damages suffered by the plaintiff.  According to the Court, the duty of care to remove or restructure the content that caused a combination of snippets to appear in a Google search result existed because:

1. plaintiff had suffered damages because of the wrong suggestion;

2. defendant used the services of Google, had optimized the ranking of its website in Google, and profited from this (through advertisements);

3. Plaintiff had requested to do something about it a number of time, with reference to the damage it was suffering;

4. It was easy for defendant to make a simple change to the website that would have caused the snippet to change;

Discussion

Ar these circumstances that case specific? I very much doubt it. And are they convincing?

Let us first consider the aspect of damage. There was proof that some people thought that plaintiff was bankrupt. They were calling and writing the company and even asking the regional newspaper in Zeeland, the PZC. There was no proof that this caused plaintiff to suffer material damage. It’s unclear whether the Court assumes there was any. From the lack of material damages in the verdict, it seems there was insufficient proof for this. The damage therefore consists of people thinking that defendant was bankrupt.

I wonder what is meant by the statement that defendant used the services of Google under 2. Normally, the inclusion of one’s website in Google does not imply the use of any service. It could mean that defendant used Google’s webmaster tools to optimize the site, so the webmaster should have been aware of Google and the importance of Google’s search results. The other arguments under 2 fit into this reasoning. Not only had plaintiff knowledge of Google’s search service, it optimized it and profited from a prominent listing because it attracted visitors, which in turn increased advertising revenues.

The argument under 3 increases the knowledge of defendant that something could be causing damages to plaintiff. Argument 4 relates to the costs and difficulty of avoidance to cause damage. Defendant did not control the combination of sentences in the search result but by restructuring its website or removing the word bankrupt from the particular page, it could cause the combination to disappear, according to the Court.

In other words, the Court puts itself in the website editor’s shoes. I find this highly problematic from a free speech perspective. And implicitly, the court assumes that there is not a lot of value in the website and the combination of information it contained.

Legal Cause

The other basic problem with the Court’s reasoning is in the aspect of assigning the damage to the conduct (negligence) of defendant. This assignment of damages, i.e. ‘legal cause’, is a substantive legal test in (Dutch) tort law, which relies on the foreseeability or the remoteness of damages. It is with regard to this test that the court’s reasoning breaks down. Again, the damage consisted of people thinking that plaintiff was bankrupt. For legal cause to be fulfilled, these thoughts should be somehow reasonable. And freedom of expression makes the test of legal cause particularly important. One can not be liable for a completely wrong conclusion that is drawn from one’s statement. Google search results are search results, they are not an independent sources of information. In particular, Google’s snippets are not an authoritative source of information about bankruptcy. If one wants to check whether a company is bankrupt, there are specific sources where this information can be found. And people that search for [defendant bankrupt] were probably acting on a rumor already. They in particular should be expected to check the underlying information. It also follows that the conclusion that defendant could easily prevent the damage is a little too easy. In principle, it’s a company’s own responsibility to address unreasonable conclusions about its business, by its own statements or conduct.

Who’s responsible?

Of course, the judge had to clarify why defendant, a website, could be held responsible for a combination of (perfectly legal) sentences in a search result which it did not control. The Court argues that it might be true that the website had no control over the functioning of Google but suggests that these questions about the opacity of Google’s functioning should be addressed in a broader context. With reference to the arguments under 2 above, it then concludes that defendant had its own responsibility. The Court evades the question whether Google would have been liable as well, i.e. if it would have refused to take down the result after a request to do so. I doubt it. First, Google would have hired better lawyers, that would have made a better case against it. And second, the judgment fits well into the paradigm to address ‘problems’ in search engines by addressing the sources of information. But seriously, to make websites liable for the impact of legal publications in search engines on unreasonable end-users is a step too far.

It will be interesting to see whether there will be an appeal. Even if there isn’t, I think we can safely assume that this judgment will remain ‘unique’. UPDATE: Defendant appealed, this time with a lawyer.

Via Arnoud Engelfriet.

A Dutch judge has concluded (in a preliminary judgment) that a website is liable for a wrong suggestion in the snippet text of ‘its’ Google search result. The judge has ordered the webmaster to change its website in a way that will stop the wrong suggestion from showing up in Google. Note that the text on the website itself was not unlawful. The problem was that a search for [zwartepoorte failliet] (= CompanyName bankrupt] resulted in the following snippet text:

Volledige naam: Zwartepoorte Specialiteit: BMW … Dit bedrijf is failliet verklaard, het is overgenomen door het motorhuis Ik heb bij Boot Rialto gewerkt …

My translation:

Complete name: Zwartepoorte Specialiteit: BMW … This company has been declared bankrupt, it has been acquired by the motordealer I have worked for Boat Rialto …

One way to do as the judge ordered is to take down the complete page with information about the company Zwartepoorte. That is what seems to have happened now. Another solution would be to use code language such as is common with the word pr0n.

Clearly the combination of words and the quote in question will show up all over the Web so I don’t see any benefits for the company in question to have won this case. And of course, the judgment (the reasoning of the Court will be published on 27 May 2009) does not make any sense, from a tort law or from a technology perspective. A reason could be that the defendant appeared in person.

I am fascinated by the idea that the existence of search engines, and Google in particular, gives websites some kind of qualified responsibility with regard to the content on their website. I see more and more examples of this, for instance the idea that personal data should be prevented from being indexed through the use of robots.txt instructions.

The American Library Associations have filed their amicus brief to the Google Books Settlement approval procedure. They call for strong judicial oversight, stronger guarantees against possible abuse of market power, and more emphasis on intellectual freedom and privacy protection.

I have been following the settlement proceedings, mostly through James Grimmelmann’s efforts, and was looking forward to the libraries’ position on privacy and intellectual freedom. I have to admit that I am a little disappointed.

On privacy, the brief concludes:

In response to concerns raised by libraries and others, Google has stated that it will take appropriate measures to protect user privacy. The Library Associations expect Google, in consultation with the Library Associations and other representatives of user interests, to meet this commitment. Google and the Registry should develop strong policies to protect personally identifiable information, and provide users with clear notice describing those policies.

In other words the brief does not call for limitations on the registration of individual reading habits or the further use of such information. And the problem that the brief does not address is the lack of protection against government access under US law. Without legislative action, the reading records that would be collected by Google are accessible with a simple subpoena. Google and the Registry can settle what they want, and the court can approve what it wants, they cannot offer additional protection under US law against access by law enforcement and national security agencies.

On intellectual freedom, a library term for freedom of expression and information, the brief discusses Google’s discretion to exclude books for editorial and non-editorial reasons. A recent debate over library censorship shows how real these concerns are in the United States. The brief notes:

While Google on its own might not choose to exclude books, it probably will find itself under pressure from state and local governments or interest groups to censor books that discuss topics such as alternative lifestyles or evolution. After all, the Library Project will allow minors to access up to 20% of the text of millions of books from the computers in their bedrooms and to read the full text of these books from the public access terminals in their libraries. Although public libraries have often contended with demands to eliminate or restrict access to specific books, any collection management decision by a particular librarian affected only that community.

What the brief fails to notice, is that the books in the Google Books Program are already available somewhere in a United States library. One would expect this to mean that the material is legal and suitable for American readers, from a librarian’s perspective at least. Why would libraries agree to an extra round of editorial discretion with regard to material that has been carefully selected already?

The remedy proposed in the brief is accountability through transparency. The Court, overseeing the settlement, should be able to direct Google to provide a list of excluded books with a motivation for these exclusions. This will probably be enough for Google to think twice about excluding books for bad reasons, but I would have expected libraries to take a stronger stand on (private) censorship and simply oppose the removal of books from Google Books because they would be unsuitable for children.

About a month ago, the European Court of Justice decided an important internet and freedom of expression case. I just posted a link to a commentary I have written for Mediaforum (in dutch). I do recommend reading the case.

One conclusion I drew from it, is that increased publicity and findability can end up having a negative impact on the integrity of online archives.

I point to the Court’s first general, explicit (and lukewarm) consideration of the importance of the Internet:

In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10.

I criticize the Court for its distinction between the protection of online archives of publications and new publications. It is great that the electronic environment incentivizes newspapers not to make such a distinction and not to remove their historical publications. It means that the electronic environment can add to the value of the newspaper for itself, for other information providers (they can link to them) and for users (they can inform themselves by navigating a networked hyperlinked environment).

And to conclude these short pointers, I wonder why the Court uses the word ‘likely’ in some of its crucial considerations with regard to the implications of Article 10 ECHR:

The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material.

This is a Court that stops being the highest Court to address these questions. I have looked for a similar weak statement about the implications of Article 10 ECHR but did not find it. Please send me a note if you know another!

The Financial Times has an article giving some insight into the debate that will have a huge impact on freedom of expression and access to information in the EU. The main point of discussion is whether fundamental rights have to be taken into account when end-users would be disconnected from the network, something that is being pushed as the new copyright enforcement strategy.

European Council diplomats seem to be thinking this is not the case:

A spokesman for the rotating EU presidency said: “None of the existing conventions and laws recognise internet access as a fundamental right on its own. It is simply one of the means of access to information.”

This is a flawed position. I think it is so clearly wrong that I hope it will backfire on them. Freedom of expression and freedom of communication are protected by Article 8 and Article 10 of the European Convention on Human Rights and the EU Charter. Although there might not be an explicit fundamental right to access the Internet in most European Countries, the Internet is the most important communicative medium for European citizens. The Internet is NOT ‘simply one of the means to access information‘. European institutions recognized as much in a host of official documents. Access to the Internet is a prerequisite to communicate effectively, by email, VoIP, over social network sites, and to find and access information, ideas, and services, including an increasing variety of e-government services. EU Member state Estonia does recognize access to the Internet as a fundamental right explicitly.

The European Court of Human Rights recently stated:

“In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”

To disconnect people from this communications and information network, thereby limiting its “important role in enhancing the public’s access to news and facilitating the dissemination of information” is simply an interference with the right to freedom of expression and communication that need to be legitimized. The Parliament’s efforts, which would merely ensure that European citizens are not unduly banned from the net, not only deserves support, it could be strengthened. In fact, the current proposal by the Parliament is simply a restatement of fundamental legal principles that an interference with fundamental rights as serious as a ban from the Internet need to follow due process.

Clearly, the opposition from the Council has also to do with the lack of will of member states to harmonize procedural safeguards:

Opponents say this is an issue of legal enforcement over which Brussels has traditionally had few powers.

But, the procedural safeguards proposed by the Parliament are simply a reaction to the attempt to high-jack telecommunications regulation in the interests of copyright enforcement. Disconnecting users from the net is not a good solution. The European Parliament should stand by its efforts to curtail disproportionate enforcement strategies that impact on communicative freedoms.

A final meeting between the parliament, Commission and member states is due tonight, with no further opportunities to agree a deal before the elections without the entire package being reopened.

A spokesman for the Commission stressed that “a solution [on intellectual property protection] must be found, and we believe it will be found”.