We need to talk about how we define responsibility online – and how we enforce it

Web Summit 2017

Participation of Tibor Navracsics, Margrethe Vestager and Carlos Moedas, Members of the EC, in the Web Summit 2017. .© European Union , 2017 / Source: EC – Audiovisual Service / Photo: Baptiste de Ville d’Avray.

This article is brought to you thanks to the strategic cooperation of The European Sting with the World Economic Forum.

Author:Florian Drücke, Managing Director, Bundesverband Musikindustrie

The one – and only – good thing about hate speech and #FakeNews? They have finally pushed the topic of online responsibility into public discourse. While the Facebook data scandal has delivered unsurprising results, one thing has turned out to be overwhelmingly evident two decades since the start of the Internet Age: demanding “responsibility” and “liability” in the digital space does make sense.

People seem much more willing than before to acknowledge that those who travel the worldwide web are responsible for what they do there, be it the individual citizen or an online platform. They are finally realizing that “responsibility” is the prerequisite for what makes us a society: freedom within the limits of freedom.

Nothing new: responsibility in the online sphere is a complex subject

The question of who should be held responsible for what, where and when in the online sphere is hardly new. A number of business sectors – including the creative industries – have grappled with this question since the turn of the century. It is an issue that affects all participants in the digital world and touches on a wide spectrum of rights, including the right to privacy, property and personal integrity. Even though we’ve been facing these challenges for more than two decades, it’s only now dawning on people that the issue of liability has implications beyond such things as the sale of fake goods, advertising on illegal sites and even the illegal distribution of films and music. These are just a few examples of cases keeping courts and prosecutors busy to date.

Only now have we finally reached the point where society as a whole is ready to discuss the extent to which existing criminal and civil law can and should be enforced in the digital sphere. Keep in mind this must be achieved in an environment still based to a great degree on anonymity – enforcing the law here is not exactly easy. This was the inspiration behind the well-intentioned German Network Enforcement Law, put in place in January 2018.

Needed: a clear allocation of roles for both the individual and the platforms

In Germany, we have seen a number of federal court decisions concerning the scope of responsibility in matters relating to the illegal distribution of content as well as to the distribution of illegal content. The scope of potential liability reaches all the way from the registrar – that is, from the body responsible for website domain registration – to the website host and the provider of internet access.

When we look at these cases – which involve free wifi access and the scope of liability of access providers – it becomes evident that the rules need clarification. Indeed, even the act of providing a link to illegal content brings up complicated questions of accountability. For example, in recent important decisions, the European Court of Justice – finally – determined that the notorious Pirate Bay site was directly infringing copyright by facilitating users’ access to copyright works and recordings, and ruled that linking by commercial services to works made available without right holders’ consent is presumed to infringe copyright. It has taken many years to achieve these judgments in the courts.

As so often in these matters, the intermediaries distributing the content at the outset have not been willing to take clear responsibility. Instead, they point the finger at those individuals or entities sharing or uploading the content online. The idea behind this approach is that the person and/or entity should bear liability – and preferably also be prosecuted. This approach implies the storage of user data and, if necessary, passing it on in the case of an investigation. The more you release intermediaries from liability – even though they might be acting intentionally, accepting the consequences of their actions – the tighter the noose is tied around the necks of identifiable individuals in the process of civil law disclosure procedures and police investigations. At the very least, the dilemma we face will become clear when in the same sentence reference is made to data retention on the one hand; and the often proclaimed “right to anonymity” on the other.

An opinion is not a fake pair of trainers but…

Our current discussion shows that ambiguity in matters relating to liability is socially and economically unacceptable both with regard to individuals and online platforms. However, the debate surrounding Germany’s Network Enforcement Law also illustrates the complexities involved in finding a solution. In the realm of freedom of expression, it is particularly important that we exercise caution. An opinion is not a fake pair of trainers, that is, it is not something easily identifiable according to certain brand characteristics. An opinion is also not a data file; it is not something that can be identified using a form of fingerprinting. In fact, there is much more at stake here, namely the preservation of our peaceful coexistence with one another.

If our goal is to de-escalate the current atmosphere, the first step would be for all participants in the digital sphere to fundamentally acknowledge responsibility for their online activities and behaviour. We must precisely define and delineate the legal rights and obligations of all participants so everyone has a clear idea what they’re getting into and which role they play online. This would, of course, extend to issues of licensing which is the financial lifeline of the media and creative industries.

The world’s largest music platform still calls itself “technically neutral” – really?!

For example, it seems that YouTube – a service used for free by more than one billion users, and a body that analyses, curates and essentially participates in making content uploaded to its site available – continues to call itself a “technically neutral” platform. This status is based on a very old set of rules that allows such services to circumvent what would otherwise be an obligation to acquire regular licences.

This creates market distortion – one characterized by a “value gap” to which the music industry has been pointing for years. On the one side, we have user upload services like YouTube, which make content owned by other people available free of charge – and let’s not forget that we are talking about content in whose production these services didn’t invest. On the other side, we have music services such as Spotify, Apple Music, Amazon and Deezer, bodies who must pay the rights holders of regular commercial licences for the use of their music content. Once again, let’s not forget that this is content the entire industry depends upon to refinance its investments in the market – without it the industry would be robbed, sooner or later, of the very basis of its livelihood. This makes it all the more important that we support the approach pursued by the European Commission in the framework of European copyright reform, which seeks to make it clear that certain platforms should be obliged to enter into licensing agreements with creatives and their partners.

Defining and acknowledging responsibility is crucial to ensure digital welfare

If we want to ensure sustainable and balanced growth of the digital content markets, it is essential that we achieve clarity in these matters. This must take place not only at the national level but also at EU internal market level, for example, in the interests of the EU’s Digital Single Market. Any other path will only lead to the erosion of existing laws and, incidentally, to an undesirable pre-eminence of terms and conditions which will not benefit consumers or society at large. It is important to prevent a weakening of the rule of law which should include the ability to prosecute infringements both off and online.

However, this is by no means a suggestion that we should overregulate the digital sphere. Instead, our highest social priority should be to clarify how various participants can be expected to interact with one another online. This should be the concern of all participants in the digital sphere, including platforms, rights holders, consumers, businesses, start-ups and, last but not least, citizens.

the sting Milestone

Featured Stings

Can we feed everyone without unleashing disaster? Read on

These campaigners want to give a quarter of the UK back to nature

How to build a more resilient and inclusive global system

Stopping antimicrobial resistance would cost just USD 2 per person a year

Coronavirus: here’s what you need to know about face masks

Peru should help more young vulnerable people into work

Obese people more likely to smoke, says new gene research: WHO

Victim-centred laws ‘paramount’ to combat online sexual abuse against children

Trump to run America to the tune of his business affairs

EU@UNGA 74: Working towards a more peaceful, secure and prosperous world

Monday’s Daily Brief: biodiversity and forests, labour and road safety, women’s rights, and fallen UN staff remembered

The application that encourages us to be heroes

Benefits of rural migration effect often overlooked, new UN report suggests

Education should be like everything else. An on-demand service

Remembering Kofi Annan

UN allocates $20 million in emergency funding, as Cyclone Idai disaster unfolds

JADE Testimonial #1: Marcello @ Enlargement

US life expectancy is falling – here’s why

Tips for investor engagement in emerging markets

The Linde Group Logo (Source: The Linde Group website, Press Services, 2018)

EU starts in-depth investigation of Linde-Praxair merger over competition concerns

The UK to split if May’s hard or no-deal Brexit is pursued

The implications of Brexit on European business, youth entrepreneurship and junior enterprises.

UN postal agency ‘regrets’ US withdrawal

EU tells Britain stay in as long as you wish

Drones are saving lives in Tanzania’s remote communities

This AI can predict your personality just by looking at your eyes

European Union policy for improving drought preparedness and mitigation

The G7 should take the lead on ocean targets for 2020

South Africa’s SMEs should be first in line for a digital upgrade

Brazil identifies a clear pathway for aligning its transfer pricing framework with the OECD standard

Parental leave: why we can’t wait a century for equal rights for women

The EU to fight cross-border tax evasion with a toothless directive

Coronavirus: Commission unveils EU vaccines strategy

Mergers: Commission opens in-depth investigation into proposed acquisition of GrandVision by EssilorLuxottica

Has Germany rebuffed ECB on the banking union?

Colombia: ‘Terrible trend’ of rights defenders killed, harassed; UN calls for ‘significant effort’ to tackle impunity

Here’s how we need to change global supply chains after COVID-19

Palestine refugees’ relief chief warns Security Council money to fund Gaza operations will run out in mid-June

Opponents of constitutional change in Burundi face torture and execution: UN investigators

Mental health and suicide prevention – What can be done to increase access to mental health services in my region?

Health Care Workers’ Safety and Health as Assets in the Fight Against COVID-19

On Grexit: Incompetence just launched the historic Ultimatum that could open “pandora’s box”

CHALLENGING THE ZEITGEIST OF DIGITAL – Change making projects innovate mobile support for refugees, inclusive environments, early breast cancer detection and more

Countdown To GSMA Mobile World Congress Shanghai 2018 Is On

Parliament’s proposal to reinforce flagship programmes is worth 39 billion euros

In DR Congo, UN Security Council says December polls are ‘historic opportunity’ for country

3 ways to ensure the internet’s future is creative, collaborative and fair

From drought to floods in Somalia; displacement and hunger worsen, says UN

Workplace risks: Final vote on protection from carcinogens, including diesel fumes

‘Severe’ new US asylum restrictions will put vulnerable families at risk, UN refugee agency says

Praising Roma’s contributions in Europe, UN expert urges end to rising intolerance and hate speech

How do we make artificial intelligence more humane?

Dealing with stress among healthcare professionals: are we missing the elephant in the room?

As Syria conflict enters ninth year, humanitarian crisis ‘far from over’, Security Council hears

The British “nonsense”, the relaxed Commissioner and the TTIP “chiaroscuro” at this week’s Council

China Unlimited Special Report: The trip to China

MEPs debate Brexit and relations with China following EU spring summit

US now has most coronavirus cases in the world – Today’s coronavirus updates

UN committed to helping Haiti build better future, says Guterres, marking 10-year anniversary of devastating earthquake

5 world-changing ideas: our top picks for World Creativity and Innovation Day

EU growth in 2015 to be again sluggish; Can the Juncker Commission fight this out?

Trump’s withdrawal from the Paris climate deal is bad for US business. Here’s why.

EU Budget 2020 deal: Investing more in climate action, youth and research

UN leads bid for cheaper insulin, expanding access for diabetics worldwide

More Stings?

Advertising

Speak your Mind Here

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s