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EU Digital Services Act: grasping the opportunity to refresh the resilience of our European democracy

  • June 2020
  • Ioanna Karagianni
EU Digital Services Act: grasping the opportunity to refresh the resilience of our European democracySource: Future of Privacy Forum

Online platforms have gained a dominant role in our lives and in our democracies. We do business online, we get informed through online platforms, we buy products, organize events and exchange views on topics of our interest.  There is, at the same time, a need to better accommodate to this new reality while we maintain our privacy, dealing with fake news, and curbing risks and challenges that our new, digital reality generates . Shall the EU grasp this as an opportunity to refresh European democracy or will it let it pass?

 

Along with other flagship initiatives such as the Green Deal, in her political guidelines and in the European Commission (EC) Communication ‘Shaping Europe’s Digital Future’, EC President Ursula von der Leyen described her plans to grasp  what opportunities  digital technologies create. She talked about how Artificial Intelligence (AI), the Internet of Things and 5G are fast transforming the world and our everyday lives and how the General Data Protection Regulation (GDPR) can act as an example of success story.

 

The February 2020 EC Communication ‘Shaping Europe’s Digital Future’ defined the  Commission’s intentions to create the conditions and deploy capacities to become a leader in ensuring the integrity and resilience of data infrastructure, networks and communications. It expressed the plans for Europe to be self-defined, but, at the same time, remain open to collaboration with parties willing to play ‘by European rules and meet European standards’[1] and to shape global interactions.

 

The Digital Services Act package is the concrete plan which “will upgrade our liability and safety rules for digital platforms, services and products, and complete our Digital Single Market.”[2] The February EC Communication announced actions under the heading of the Digital Services Act in two parts: one dealing with online liability and safety and with the harmonized regulations for the digital single market, based on the logic of the E-commerce Directive around illegal and harmful content- envisaged to result in an EC proposal for new and revised rules by the end of the year. The second part of the package  creates some ex-ante rules[3] regarding, for instance, contestability issues for some large platforms.

 

This aims to upgrade online governance, a much needed actas the  policies in place date back to some 20 years, It sets up common rules to expand the liability of digital platforms and online advertising services in the EU and enacts measures to limit the spread of online hate speech and disinformation. Lately, the EC also launched a public consultation on the Act to gather opinions from  businesses, individuals, and the civil society. But are these plans fit to boost the resilience of European democracy against emerging threats, such as disinformation?

 

The current E-Commerce Directive includes standard rules for the intermediaries’ liability in content sharing. If the EU aims at creating and implementing an ambitious plan, revising the responsibility for online content should be given greater importance. Private companies which are part of the content dissemination chain could, for instance, be given more  incentives and safeguards to work on liability,  in co-operation with the regulators. Equally important is the need of the latter to adopt clearly defined concepts regarding illegal information, misinformation and hate speech.

 

Human rights, such as the freedom of speech, need to be equally protected both offline and online. This is for a plain reason: since it is easier for platforms to deal with online material by taking it down, there is a proven tendency in the current regulations to accommodate to this (e.g. in the copyright regulation). For the moment, according to the current regulations and their definition of liability, a platform is either not responsible at all for their online content or they have an diting responsibility. This raises issues as  many online platforms  tend to boost certain types of content  and to hide other types. Thus, there is the need to create a regulation that combines balancing rights and liability. Furthermore, in order to  successfully promote a competitive EU in the digital economy, the EU should increase the transparency of online platforms, hold companies behind the platforms responsible for removing illegal content, and create regulatory consistency by harmonizing EU rules.

 

A whole new digital world has been created in the recent years and this is the future. The successful implementation of the Digital Services Act is not only an opportunity to upgrade the policies on online platforms, but it will also modernize the European economy and help to refresh the resilience of our European democracy vis-à-vis hate speech and misinformation.

 

[1] European Commission, Communication ‘Shaping Europe’s Digital Future’, February 2020, < https://ec.europa.eu/info/sites/info/files/communication-shaping-europes-digital-future-feb2020_en_4.pdf>

[2] European Commission, A Union that Strives for More: My agenda for Europe, p.13, < https://ec.europa.eu/info/sites/info/files/political-guidelines-next-commission_en_0.pdf>, accessed online on 10 June 2020

[3] European Commission, Communication ‘Shaping Europe’s Digital Future’, February 2020, < https://ec.europa.eu/info/sites/info/files/communication-shaping-europes-digital-future-feb2020_en_4.pdf>

 

It breaks if you don’t try: EU Foreign and Security Policy

  • February 2020
  • Hannah Bettsworth

It breaks if you don’t try: European Foreign and Security Policy

An EU that fails to act to defend its interests and values on the world stage is an EU that fails voters through passivity and inaction.

Source: CSDP EEAS Flickr

 

The recent Munich Security Conference (MSC) had the tagline “Westlessness”, which was met with some confusion by non-native English speakers. The intention was to suggest that the West’s was in retreat – even decline – and that the prospect should be causing policymakers a certain restlessness. Not particularly easy to translate.

 

However, it is an important concept. There was a clear division on show at the conference within the West – between Europe and the USA – not just over security and defence tactics, but over what the threats actually were. Republicans and Democrats in the USA agree on very little at the moment but are united in the belief that Huawei should have no place in 5G infrastructure in Europe. Europe, as ever, has almost as many viewpoints as it does countries.

 

Henry Kissinger, a former US Secretary of State, is said to have asked: “Who do I call if I want to call Europe?” The EU claimed to have resolved this conundrum with the advent of the High Representative for Foreign Affairs and Security Policy, a position currently held by Josep Borrell.

 

Borrell, to his credit, has recognised that he simply does not have the power to be the go-to man for all of Europe. At the MSC, he expressed a desire for the EU to move beyond simple statements and expressions of concern. He wants a Europe that is comfortable with talking in power terms and using its power to get what it wants. For Borrell, unanimity is a stumbling block to action, and the majority must be able to act in its absence.

 

It is the absurdity of unanimity that has led the EU into its current predicament. Until recently, it was in the frankly embarrassing position of having a naval mission with no ships. This was a direct result of Italian intransigence about sea rescues conflicting with the general will to maintain Operation Sophia. What it now has is yet another lowest-common-denominator compromise where there can be a naval mission against arms trafficking, but only as long as nobody has to rescue any migrants from drowning.

 

This lowest-common-denominator tendency seriously weakens the EU’s foreign policy and its reputation. It provides other countries with a very easy way to influence EU foreign policy: China and Russia know that they need only convince one Member State to disagree in order to block or limit EU action on a particular topic. Macron, despite showing questionable judgment on seeking reconciliation with Russia, has correctly identified the need for Europe to start taking its own security seriously.

 

His solution has been a separate group, outside of the EU and NATO, called the European Intervention Initiative. It is essentially a ‘coalition of the willing’ to prepare and respond to crises together. France, which has become the only nuclear power in the EU after Brexit and whose army is among the strongest in Europe, is ready to lead the coalition. As positive a development as this is, it does not address the fundamental problem. It is the EU, not its members, which is not taken seriously as a foreign policy actor. The rest of the world approaches Member States instead if they want to get anything done, with the ‘implication […] that Europeans need to get their act together if they want outsiders to take them seriously.’

 

The true mark of success for EU foreign policy would be the ability to shape events in its neighbourhood. The sheer size of its market gives it the capacity to do so, but the political sensitivities surrounding the Common Foreign and Security Policy (CFSP) mean that this potential is largely wasted. The Eastern Mediterranean is afflicted by a number of crises, but the EU’s foreign policy priority has been migration control. European conflict resolution efforts have been ineffectual and marginal, and there is no real strategy on Libya or Syria that goes beyond keeping refugees out of Europe.

 

The EU’s new naval mission is, again, emblematic of its broader foreign policy failings.  To actually enforce the Berlin Agreement’s arms embargo, it would need far more capacity than European countries would be willing to supply. Stopping the flow of arms would require ground troops on the Egyptian-Libyan border and total control of Libyan airspace with European fighter jets. It could enact sanctions if it were capable of getting all Member States to agree to them.

 

Eastern Mediterranean crises have, arguably, got as bad as they are because of the power vacuum left by American disinterest and European paralysis. Other countries have seized the opportunity to fill the gap with both hands, developing conflicts into proxy wars. The European public [including the UK, as the survey linked was carried out in 2019] supports a common EU defence and security policy and a common foreign policy (74% and 66% respectively.)

 

An EU that fails to act to defend its interests and values on the world stage is an EU that fails voters through passivity and inaction. The only way forward is for the Commission to continue working to convince Member States to introduce majority voting on the non-military aspects of CFSP. With unanimity still in place, decisions will continue to be held hostage by single Member States, other actors will have a simple way to disrupt European foreign policy, and the EU will remain toothless and unable to act on the global crises that the public want it to address.

Why can’t you be more like Estonia? : Creeping Illiberalism on the European Internet

  • February 2020
  • Hannah Bettsworth

Why can’t you be more like Estonia?

 

Source: Pixabay

Creeping Illiberalism on the European Internet

 

At the recent Masters of Digital conference, one of the panels looked ahead to the future of the digital world in 2040.  One of the topics arising was the future of online freedoms 20 years from now. The Internet Society’s Regional Vice President Europe, Frederic Donck stressed that we need to respect internet freedoms in addressing internet policies, we should not discard them while addressing other issues. In English, we would call this ‘not throwing the baby out with the bathwater’. In other words, don’t throw out something good while attempting to get rid of a problem.

 

The UK is not paying much attention to this concept of digital freedoms. In a previous CFEP blog, Otto Ilveskero told a cautionary tale about overstepping the mark on regulating fake news: “regulators can sidestep much of the accusations regarding silencing the freedom of speech[…] by regulating not offensive content, but content that is harmful to the safety and wellbeing of others.” With its Online Harms White Paper, the UK has used the same language about protecting the safety and wellbeing of others, but as a defence of giving the state more power to decide what is harmful ‘enough’ to require regulation.

 

It seeks to create a new regulator to handle disinformation, trolling, selling illegal items, non-consensual pornography, hate speech, harassment, promotion of self-harm, and content uploaded by people in prison. Said regulator would be able to issue fines or hold senior management staff liable for breaches of its codes of practice. Notwithstanding that this is a very long and varied list of issues, there’s another, similarly idiomatic, issue. The road to hell is paved with good intentions.

 

The promotion of self-harm category is a case that sums up the delicate issues of freedom and of protection at play online. Instagram has increased its efforts to remove material relating to self-harm and suicide following the death of a British teenager. That had an unintended effect on other young women worldwide, who were finding photographs of themselves removed because their scars were visible. For them, that was a value judgment that their appearance was unacceptable and potentially damaging to others. Ethical debates can be had to weigh up these kinds of issues, but when we talk about online content filters, that nuance is gone. All an algorithm can tell you is that it has detected a picture containing scars.

 

It is not just Britain that has rushed to solve social ills without considering the nuances and the potential impact on the online freedoms we have all come to cherish. France has enacted a law to tackle ‘fake news’. In short, it allows judges to order the removal of articles within three months of an election. Upon getting a report from a public prosecutor, political party, or individual, the judge has 48 hours to decide whether it constitutes ‘fake news’. To qualify, it must be obviously false, deliberately spread on a large-scale, and lead to a disturbance of the peace or the fairness of an election.

 

Sounds reasonable? Imagine such a law in the hands of a country where the judiciary has been captured by the ruling party. Where the leader has a tendency to deem any inconvenient story to be manifestly untrue, to be spreading because of the media and the political opposition, and to suggest that these actions are fuelling violence. When moderate politicians grant themselves additional regulatory powers, they should consider whether they are truly comfortable with what those powers would look like in the hands of populists.

 

On an entirely unrelated note, Hungary has also been known to use otherwise innocuous measures in negative ways. Privacy rights are more important than ever in a digital age, where everything we do can be filmed and everything we say can be recorded and held against us. Viktor Orbán’s son-in-law, István Tiborcz, may have had a similar thought when the Supreme Court ruled news site 444.hu violated his privacy rights – as a non-public figure – by publishing a video interview of him without his explicit consent. Tiborcz’s company had contracts with local governments that the 444 and other investigative media outlets found suspicious. Potentially, as a man facing corruption allegations, he may have been even more relieved about limiting his exposure to public scrutiny.

 

Even Germany is not immune to this trend of creeping illiberalism cloaked in defending rights or resolving social problems. Its domestic law, the Network Enforcement Act (NetzDG), is arguably the precursor to EU efforts in tightening up content removal rules. The NetzDG requires removal of ‘obviously illegal’ content in under 24 hours, and within seven days for non-obviously illegal content. An entire satirical magazine lost its Twitter account, albeit temporarily, to NetzDG enforcement. Companies have an incentive to remove first and ask questions later: they might get fined up to €50m for non-removal, and incorrect removals have no real consequences.

 

We see the same policies creeping on to the EU stage with the Regulation on Preventing the Dissemination of Terrorist Content Online (TERREG) and the Copyright Directive. TERREG goes hand-in-hand with online filters, with the same problems regarding algorithms and context. A key example relates to the wrongful deletion of YouTube videos that served as evidence of war crimes in Syria. The Copyright Directive also raises the spectre of algorithms detecting violations and is out of touch with a new wave of young voters who want to see better from their European Union.

There’s a country getting it right, according to Freedom House. Estonia, keeping up its good reputation for all things digital, has protected its people’s online freedoms. They punish truly harmful actions. If someone incites hatred, violence or discrimination on the basis of particular characteristics they can be fined. If those actions lead to death, negative health impacts, or other serious results, they could find themselves spending up to 3 years in an Estonian jail. Any blocks that do exist mostly revolve around unlicensed gambling sites. They opposed the Copyright Directive and are using their technological reputation to lead on cybersecurity efforts.

Overall, the Internet does bring both strife and success. They are fundamentally intertwined. As long as there are debates online, there will be bad-faith participants. As long as e-commerce exists, e-criminals will too. If governments fail to balance freedoms strongly enough, they will throw out the heart of the internet and may merely be left holding a bucket of straggling criminals.

LGBTI rights and EU Enlargement

  • February 2020
  • Hannah Bettsworth

LGBTI rights and EU Enlargement

Backsliding is all too common across Europe, and the EU’s unreliable allyship risks the lives and freedoms of Western Balkan LGBTI activists.

 

File:Parada ponosa Ponos Srbije 2018, 01.jpg

Source: Wikimedia/Mickey Mystique

 

This week, the International Lesbian, Gay, Bisexual, Trans, and Intersex Association Europe (ILGA-Europe) launched its Annual Report 2020 in Brussels. This report goes beyond the EU, covering the human rights situation for LGBTI people in 54 countries across Europe and Central Asia as well as reviewing the work of the EU, UN, Council of Europe and OSCE.

 

The Commissioner for Equality, Helene Dalli from Malta, attended the event. Malta, the EU’s smallest member state, has built a strong reputation for promoting LGBTI rights at home and in Europe.  Commissioner Dalli made a staunch defence of LGBTI rights and highlighted the need for vigilance against bullying and hate speech, lest it open the door to even worse. In this regard, the Commissioner spoke of LGBTI victims of the Nazis and committed the Commission to take any necessary actions within its Treaty competences in order to stop violence, hatred or discrimination.

 

The concern for civil society activists is that, in 2020, states still need to be told to respect the fundamental rights of LGBTI people. A case in point is that of Poland. Local politicians have begun classifying their areas as ‘LGBT free zones’, resulting in a strong backlash from civil society activists, the European Parliament, and the European Commission. The Polish Campaign Against Homophobia, also present at the event, worked with the Commissioner to discuss solutions. What mattered most to them was about upholding and defending the rule of law, so that ordinary LGBTI people would be able to make legal challenges if need be. It also called for the EU to develop a Directive on countering hate crime to ensure that LGBTI people across the Union have at least a basic level of protection.


Looking at the Western Balkans demonstrates the EU’s importance for minority rights activists. Under Article 49 TEU, ‘any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.’ To join the EU, Western Balkan states need to reform their legal and administrative systems to support LGBTI equality. However, the picture remains mixed in most of the Western Balkan countries, based on the ILGA Annual Report 2020 and the LGBTI Equal Rights Association for Western Balkans and Turkey (ERA) Enlargement Review 2019.


In Albania, NGOs reported discrimination against transgender women in the rental market, as well as 449 hate crimes against LGBT people in 2019. Only 34 were reported to the authorities by victims, and only 1 was acted on. Reporting hate crime to NGOs instead of the authorities is a common issue not only in the Western Balkans but across Europe, out of fear of having their sexualities exposed, or mistrust/mistreatment at the hands of the institutions.

Albania rejected the UN’s and NGOs’ calls to ban ‘sex normalisation’ surgery on intersex children, and anti-LGBTI bullying remains common in schools with no policy in place to tackle it. The media still uses derogatory language, particularly towards transgender people. Pride Marches are respected and supported by government figures and security services, and the Police Academy has worked with NGOs on LGBTI-related training.

However, there is still no provision for legal gender recognition or for same-sex partnerships despite draft laws having been produced. Transgender Albanians remain particularly vulnerable. Public opinion on LGBTI people is still predominantly negative and most LGBTI people feel forced to hide their identities. In 2019, 17 LGBT Albanians sought asylum abroad.


Some LGBTI people from Bosnia and Herzegovina (BiH) also seek asylum abroad. A lesbian couple who were assaulted in Banja Luka (a predominantly Serbian area) ended up leaving the country after being met with police hostility in reporting. Anti-discrimination laws exist but are poorly implemented and few LGBTI-related cases have gone to court. Hate speech intensified around the time of the Pride March, particularly online, and football fans flew the Brunei flag in apparent support for the death penalty for same sex relations with no repercussions. In the predominantly Bosniak and Croatian area, the Sarajevo Pride and the Merlinka International Queer Film Festival went ahead successfully, although the organisers of the former  complained about what they felt to be unreasonably large security bills. Police training on hate crimes in partnership with NGOs also took place, but it was uncertain if it was a one-off or not. Same-sex couples lack legal recognition, and transgender people lack legal gender recognition as well as state-funded healthcare. Intersex children undergo unnecessary ‘sex normalisation’ procedures.


In Kosovo, a Ministry of Justice official was arrested for commenting online that LGBTI people should be beheaded. A new Criminal Code (Jan 2019) bans hate crimes and hate speech on the grounds of sexual orientation and gender identity. Civil society has threatened to take the government to court over the Civil Code failing to include recognition of same-sex partnerships. Some parties publicly supported LGBTI rights in the 2019 elections. Earlier this year Blert Morina, a trans man, was finally able to get his ID changed after 2 years of legal battles, but there remains no official gender recognition process. Pride Week was supported by the government and the opening was held in the President’s building.


North Macedonian trans people have faced difficulties in accessing healthcare. A trans woman was harassed and denied her prescribed hormones at a pharmacy, and no state or professional bodies found discrimination to have taken place. The Minister of Health announced trans healthcare would be covered by public insurance but gave in and withdrew the decision under transphobic public pressure. On a more positive note, a new law on Primary Education made it mandatory for schools to report cases of anti-LGBTI discrimination or face a fine. An anti-discrimination law was also adopted, protecting people from discrimination based on their sexual orientation or gender identity. The first Skopje Pride took place on 29 June and was met by counter-protests and violent attacks against NGO activists. In the latter case, the police did their job in protecting the activists and were also attacked. North Macedonia still lacks a legal framework for gender recognition, and the ECHR ruled accordingly that it is in violation of the right to a private and family life.


Montenegro also has a poor record on trans healthcare and protecting trans people against hate-motivated attacks. Two nurses at the Podgorica Health Centre were considered by the Deputy Ombudsman to have shown transphobic behaviour in mocking a trans woman seeking hormone therapy. The case has been sent to the Commission for Quality Control, but little has been done to secure access to hormone therapy. A Commission for Transgender Health in the Clinical Centre is working on plans to remove medical hurdles to gender transition. Some towns have adopted their own local LGBTI action plans together with NGOs. Among school students, prejudice and myths persist surrounding trans peers, but 62% would support trans students in any case. Public opinion more broadly remains mixed – fewer people believe LGBTI people to be harmful, but only 27% of those surveyed by the Ministry of Human and Minority rights would be ready to instantly support their child if they came out as gay, lesbian or bisexual.


Finally, in Serbia, hate crimes remain a serious issue, and Belgrade’s Pride Information Centre has been vandalised on multiple occasions with little police action. Textbooks no longer describe homosexuality as a disease, and NGOs have provided training for high school teachers and psychologists. Serbia’s female PM is in a same-sex relationship, and recently had a child with her partner who travelled abroad for fertility treatment, but has come under criticism from LGBTI activists for not acting to secure same-sex legal partnerships and family rights – artificial insemination and IVF are banned for those who have had homosexual relations in the last 5 years. Pride of Serbia was supported by the Commissioner for the Protection of Equality, but activists still faced threats after the parade. Belgrade Pride was conducted safely, but its associated Pride Caravan was disrupted in Valjevo and banned in Novi Pazar, a predominantly Muslim town in the Sandzak region. Legal gender recognition is now in place, removing mandatory surgery and sterilisation requirements, but the process still involves medical restrictions that limit trans rights and freedoms.


Overall, the EU and the Western Balkans face similar challenges on LGBTI rights. Progress is happening slowly. It has to be fought for, and the battle is never entirely won. Backsliding is all too commonplace across Europe. The difference is, EU-based activists can rely on the European Union to serve as an ally. The slowdown in the accession process risks depriving Western Balkan activists of the EU’s allyship. This, in the field of LGBTI activism, can and does mean that their very lives and freedoms are at stake.

 

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