The regulation of new media in Europe

Angela Daly and Benjamin Farrand Department of Law European University Institute Florence, Italy October 2011

INFORMATION ABOUT THE AUTHORS

Angela Daly is a PhD researcher at the European University Institute (EUI) in Florence, Italy, working on a thesis entitled corporate dominance on the Internet. She holds an LLM in Comparative, European and International Laws from the EUI (2010), an LLM in French and European Law from the Universite de Paris 1 Pantheon-Sorbonne (2007) and a BA in Jurisprudence from Balliol College, University of Oxford (2006). Prior to starting her PhD, she worked for two years for the British communications regulator, OFCOM, mainly in competition policy. Benjamin Farrand is a PhD researcher at the European University Institute (EUI) in Florence, Italy, and has recently completed his thesis entitled 'The Pan-European Licensing of Digital Music: - The Effect of the Harmonisation of Copyright and the Role of Collecting Societies'. He holds an LLM in Comparative, European and International Laws from the EUI awarded in 2009, an LLM (Distinction) in Commercial Law from the University of Sheffield (2006), and an LLB in European, International and Comparative Law from the University of Sheffield (2005). He also holds a qualification in 'Cybercrime and Electronic Evidence' awarded by the European Commission in 2009. Prior to beginning his PhD studies, Benjamin taught English and European Law on the behalf of Cambridge University at the British Law Centre at the University of Warsaw, Poland.

TABLE OF CONTENTS
1. 2. 3. 4. 5. Introduction Intellectual Property and New Media Regulation of News and PSB Content in New Media Regulation of Information Flow in New Media Conclusion

1. INTRODUCTION
Setting the scene What is new media? Broadly speaking, 'new media' can be described as digitised electronic communications. 1 The consequences of this digitisation of information have been that, compared to 'old media' (i.e. print media, terrestrial television and radio), information can be disseminated very quickly (indeed, practically instantaneously), for very little cost (e.g. once there is an Internet connection, information can be sent over the network for a price of almost zero), and unlike in old one-to-many models, information can be sent and received and viewed by many people. The most prominent example of new media is the Internet, and thus this shall be the focus of this report, however other types of new media technologies will also be considered (usually those also using the Internet Protocol). New media regulation It has only been since 2000 onwards that the regulation of new media has properly emerged. Indeed, in the 1990s, one of the prominent themes in discussions around the Internet was its inability to be regulated, particularly by the governments of nation-states. However after the late 1990s, with the increasing take-up of the Internet, as well as government and commercial interest growing in the medium and a cognisance that although the transnational nature of new media made the technologies more difficult to regulate than the 'old media', still it was not entirely impossible to do so. Since that time, as this report details, there has been a lot of interest in regulation, as well as actual regulatory schemes aimed at governing new media in Europe, both at the European supranational level, and at the domestic level of national jurisdictions. Summary of full content of report This report will examine developments in the regulation of new media in Europe. It will include pertinent examples from both the national and European contexts, as well as appropriate comparisons with non-European jurisdictions, such as the United States. The chapters will have a normative character as well as a descriptive one, outlining proposals for desirable future regulatory action on these topics. The content of the substantive chapters is as follows: the first two substantive chapters will be on the regulation of content in new media; the first of these chapters will look at the interaction of intellectual property and new media the second substantive chapter will concentrate on the regulation of news-gathering, journalism and content from public service broadcasters in the new media landscape; the second substantive chapter will be on the regulation of information flow in new media, looking at the position of 'information intermediaries' such as Internet Service Providers, search engines, and web platform providers.
1 There are various definition of 'new media'. A more expansive definition can be found in Lev Manovich's introduction to The New Media Reader: http://www.newmediareader.com/book_contents.html

2. INTELLECTUAL PROPERTY AND NEW MEDIA

This chapter will consider consider the impact of intellectual property on new media, and vice versa, and provide an overview of contentious issues. In order to achieve this, the chapter has been divided into four sections. Section one provides an overview of the international law that forms the basis of contemporary digital copyright law. Due to the large volume of legislation in this field, however, an overview of all aspects of all the legislation will not be performed. Instead, the intention is to provide a brief overview of the governing treaties, and consideration given to those sections that are most relevant to the consideration of copyright in the digital environment. Section two considers the implementation of these agreements into EU law, providing an overview of the relevant Directives in the field, including the E-Commerce Directive, Information Society Directive, and Enforcement Directive. This section will also briefly consider issues involved in the implementation of these Directives, in particular the privacy concerns raised through the implementation and use of the Enforcement Directive. The third section looks in more detail at key areas of contention in the application of intellectual property regimes to the Internet. Finally, the fourth section of this part of the Report will consider on-going legal developments at the international and European levels, and the impact this may have on digital intellectual property policy. I An overview of digital copyright law and policy The basis for contemporary copyright law and policy on the Internet in both the EU and US can be found in pre-existing international legislation. The starting point for legislation pertaining to digital copyright policy can be found in the Uruguay Round of negotiations at the General Agreement on Trade and Tariffs (GATT) talks that commenced in 1993. The result of these negotiations was the Agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPS, signed on 15 April 1994 and in force from 1 January 1995. The intention of the TRIPS Agreement was to lay down minimum standards of protection for, and enforcement of, intellectual property rights internationally, adopting the standards of the industrialised Western nations who were the prime exporters of intellectual property. The TRIPS Agreement is administered by the World Trade Organisation (WTO), which was also created by the Uruguay Round of talks. The sections of the TRIPS Agreement relevant to the exploitation of copyrighted works are Articles 9-12, although for the purposes of this report, it is Article 9 that is important. Article 9 of the TRIPS Agreement requires States to comply with Articles 1-21 of the Berne Convention for the Protection of Literary and Artistic Works, an international agreement originally signed in 1886, amended most recently in 1979. For the purposes of this analysis, the relevant sections are as follows: - Article 2, which states that protection should be granted over creative works, namely literary and artistic works, including but not limited to photography, music, film and works of architecture. - Article 3, which states that protection shall be granted to copyright holders irrespective of their nationality. This is known as the equal treatment requirement, in that national and non-national creators have equal expectations of protection of their works. - Article 5, which states that the protection of works created outside of the State shall be granted equal protection to that of works created within that State. - Article 7, which states that the term of protection for copyrighted works shall be no less than the life of the author plus 50 years. In the case of cinematographic works, the period of protection shall be no less than 50 years from the point when the work is made available to the public. This Article also states specifically at sub-section (6) that longer terms of protection are permissible under the agreement. - Article 9, which states that authors have the right to exclusive authorisation of reproductions of their work.

- Article 11bis, which states that authors shall have the exclusive right to authorise the broadcasting of works, which includes wireless transmission, wired transmission or the transmission of music by way of loudspeaker. However, Article 9 of the TRIPS Agreement states that there is no duty on the part of States to enforce the moral rights of authors. The moral right is the right of an author to object to the distortion, mutilation, or derogatory treatment of their works. This has led some authors, notably Professors Peter Drahos and John Braithwaite, to comment that the TRIPS Agreement is not concerned with the protection of creative artists, but the protection of the economic rights of corporate rightholders2. Article 9 also states that protection shall only be granted to expressions and not ideas, meaning that a work needs to be affixed before gaining protection. Affixation means that a work must be physically recorded in some manner, such as through the writing of a literary work. As is stated in Tritton on Intellectual Property in Europe, implementing TRIPS is compulsory for WTO membership3. Particularly important in the development of internet-related copyright policy are two treaties of the World Intellectual Property Office (WIPO). WIPO was established in 1967 as an agency of the United Nations, and according to the official WIPO website, has the duty to develop a balanced and accessible international intellectual property system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest 4. The two treaties are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WCT and WPPT respectively), which due to their nature are often referred to as being the WIPO Internet Treaties5, as they form part of the WIPO Digital Agenda effort to develop solutions to the challenges presented by rapidly changing technological developments. The preamble to the WCT states therefore that the reason for the Treaty is to address the need for adequate solutions to the questions raised by new economic, social, cultural and technological developments. For the purposes of this report, the relevant Articles of the WCT are Articles 11 and 12. Article 11 creates the obligation to ensure legal protection for Technological Protection Measures (TPMs), which are used to restrict the ways in which copyrighted works are used. Article 12 states that Rights Management Information (RMI) should not be circumvented, and that attempts to do so must be met with an adequate legal response. RMI includes information that can be used to identify the creator of a work, the right holder of a work and the work itself. In the Internet environment, this information would be in the form of metadata. Using MP3 as an example, an MP3 music file has metadata that identifies the artist who recorded the work, the title of the song and the record label that released the song. Tampering with the metadata so as to remove the name of the artist or the record label, therefore, would constitute circumvention of RMI according to Article 12 of the Treaty. Issues relating to TPMs and RMIs shall be considered in greater detail in the section of this chapter dealing with digital rights management (DRM). The WPPT states in its preamble that the intention of the Treaty is to address the questions raised by economic, social, cultural and technological developments in light of the profound impact of the development and convergence of information and communication technologies on the production and use of performances and phonograms. The Treaty reasserts the rights of exclusive distribution found in the TRIPS Agreement, but adds two provisions that appear to be specifically related to the possibility of 2
(2002)


Drahos, P. & Braithwaite, J. Information Feudalism: - Who Owns the Knowledge Economy?, Earthscan

3 4 5

Tritton, G. Intellectual Property in Europe, 3rd ed. Thomson/Sweet Maxwell (2008) at p.481

WIPO, About WIPO, accessible on the WIPO website at http://www.wipo.int/aboutwipo/en/what_is_wipo.html (last accessed 21/10/2011)


Seville, C. EU Intellectual Property Law and Policy, Edward Elgar (2009) at p.19

distribution by means of the Internet. Article 10 creates the right to make available to the public fixations of phonographic recordings (i.e. recorded music) by wired or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. This article therefore appears to be intended to ensure protection for works made available through on-demand services such as streaming video on the Internet, or through information made accessible on a webpage. In addition, footnote 6 of the Treaty states that the reproduction right fully applies in the digital environment, in particular to the use of performances and phonograms in digital form. This was intended to remove any uncertainty as to the applicability of copyright law to digital means of distribution.

II European Union Legislation applicable to Digital Copyright Any efforts to harmonise copyright law in the EU has been performed thus far on the basis of exArticle 95 EC, now Article 114 TFEU. In a Commission Working Paper in 1988, it was stated that the harmonisation of intellectual property regimes is necessary, as creators and providers of copyright goods and services should be able be able to treat the Community as a single internal market. This requires the elimination of obstacles and legal differences that substantially disrupt the functioning of the market by obstructing or distorting cross-frontier trade in those goods and services as well as distorting competition 6. Under the new Treaty however, there is an additional specific Article under which harmonisation in the field of intellectual property law can be performed. Article 118 TFEU states that: 'In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.' It is to be assumed, therefore, that any future harmonisation of copyright law in the EU will be made using this Article as the legal basis, rather than Article 114 TFEU. The E-Commerce Directive The E-Commerce Directive7 was intended to harmonise EU law insofar as harmonisation was necessary to ensure that commerce could effectively take place on the Internet, without differences in law that would hamper trade. In particular, the preamble of the Directive states that: 'The European Union is seeking to forge ever closer links between the States and peoples of Europe, to ensure economic and socialthe internal market comprises an area without internal frontiers in which the free movements of goods, services and the freedom of establishment are ensured; the development of information society services within the area without internal frontiers 6 7

Commission of the European Communities 'Green Paper on Copyright and the Challenge of Technology Copyright Issues Requiring Immediate Action' COM/88/172 of 7th June 1988 at s.1.3.2 Directive 2000/31/EC of the European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market OJ L 178 (17/07/2000)


is vital to eliminating the barriers which divide the European peoples 8. In order to achieve this, Article 3 states that Member States may not restrict access to legitimate services offered on the Internet that are based in different Member States. However, for the purposes of this Report, the most important Article is Article 12, which governs the responsibility of ISPs for the use of the Internet by their customers. Article 12 states that ISPs are a mere conduit of information, and therefore will not be held liable for the transmission of data by their customers, unless the transmission is initiated by the ISP, selects the receiver of the transmission, or selects or modifies the information contained in the transmission. Therefore, as long as the ISP merely acts as a conduit, there will be no liability for the data transferred. However, subsection (3) states that an ISP may be required to act in order to prevent or terminate an infringement. Article 13 states that this safe haven will also apply to the caching of information, so long as the cache provider does not modify the information, complies with rules relating to access to information, the provider complies with rules regarding the update of such information, and acts expeditiously to remove or restrict access to information if so required by the Courts of that Member State. Article 14 provides protection to information society service providers who host information, so long as they are not aware that hosted content is illegal or infringing copyright, and where it becomes aware of infringement, removes or restricts access to that content. Article 15 specifically states that information society services have no responsibility actively monitor usage by their customers. The issue of ISP immunity from liability with regards to infringements of copyright shall be discussed in a later section of this chapter. The Information Society Directive The Information Society Directive9 forms part of what is referred to as the second wave of copyright harmonisation in the EU. The second wave relates specifically to harmonisation performed in order to comply with the TRIPS Agreement and prepare the EU for wide-scale use of the Internet by consumers. The preamble of the Directive stated that: Without harmonisation at Community level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a re-fragmentation of the internal market and legislative inconsistency' 10. The intent of the Commission was to harmonise certain aspects of intellectual property usage online so as to ensure the further development of the online single market. Mindful of the ease of copying media such as music online, Article 2 of the Directive states that right-holders should be granted the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means. The Article was phrased in such a way in order to cover any type of copying which may be possible using new technologies due to the speed at which technology adapts, it is reflective of the desire not to have the legislation hampered by, for example, a change in music format or distribution mechanism. In addition, the new right of 'communication to the public' was created under Article 3, in order to ensure that only right-holders would be able to make available works on the Internet and complying with Article 10 WPPT. The Directive implements the duty to protect TPMs and RMI at Articles 6 and 7 respectively. Article 6 defines a TPM as being any
8 Ibid at preamble paragraph 1 9 Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 10  Ibid at preamble paragraph 6

technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right. RMI is defined as any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis rightthe author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information. Furthermore, the Directive sets out the exceptions and limitations to copyright at Article 5. This section of the Directive provides for a list of twenty exceptions under which the reproduction or transmission rights are exempted, including exemptions for private copying for backup purposes that are not directly or indirectly commercial, and for teaching, review or research purposes. Under Article 5(1) temporary and incidental acts of reproduction which are 'essential and integral to a technological process' are specifically exempt, as to do otherwise could render service providers and search engines in breach of copyright through the act of providing a service and linking users to materials. Article 5 is the subject of contention for reasons including the belief by some writers that the list of exemptions given in the Article are exhaustive 11. This would his therefore appear to limit the ability of Member States to be able to introduce their own exceptions to copyright, and in the words of one author 'leaves no room for devising new exceptions and limitations that may be appropriate for present or future environments, including the Internet' 12. The Enforcement Directive The Enforcement Directive13 entered into force in 2004, in order to harmonise measures, procedures and remedies appropriate to, and relevant to, proceedings relating to intellectual property infringement. According to preamble paragraph 1 of the Directive, the effective exploitation of intellectual property rights is important to the developing of the single market, and therefore strong protections are needed. According to preamble paragraphs 4-7, the Directive was enacted in order to ensure compliance with the TRIPS Agreement, and eliminate any existing disparities between the laws of the Member States. Bearing this in mind, the relevant sections of the Enforcement Directive are as follows: - Article 3 imposes a general obligation upon Member States to provide for measures, procedures and remedies necessary to ensure the protection of intellectual property rights, which must be fair, proportionate and dissuasive in order to prevent barriers to trade. This Article was intended to implement Article 41 of the TRIPS Agreement. - Article 4 lists the parties that may bring claims for intellectual property infringement. It states that this right may be exercised by the holder of the intellectual property right, all other persons authorised to use those rights, in particular licenses, collective rights management bodies (hereafter collecting societies), and professional defence bodies recognised as protecting intellectual property rights. In this respect, Article 4 goes beyond what is required by Article 42 of the TRIPS agreement, which does not grant a right to licence-users to bring actions for infringement. This means that the theoretical scope of claimants in a civil suit for copyright infringement has been greatly widened. It is not yet known whether this will result in more effective implementation of the international obligations, or greater difficulty for national and European courts when copyright is an unregistered right and even 'finding ownership of the copyright itself can be difficult' 14. Whereas there may be some certainty in the identification of license holders, all other persons is
11 See Seville, C. 'Intellectual Property', [2007] ICLQ 56(4) 899 at p.900 12 Heide, T. 'The Berne Three-Step Test and the Proposed Copyright Directive' [1999] EIPR 21(3) 105 at p.108 13 Directive 2004/48 on the enforcement of intellectual property rights [2004] OJ L195/16 14 Bonadio, E. 'Remedies and sanctions for the infringement of intellectual property rights under EC law', [2008] EIPR 30(8) 320 at pp.320-321.

somewhat vague and dissatisfactory. For example, as a user downloading music from the Internet through a legitimate service does not gain title over that work, but a license to play that work, does that mean that a consumer can bring an action for infringement should he become aware of that infringement? - Article 8 provides for a right to information, implementing Article 47 of TRIPS, where in the context of proceedings in a case of intellectual property infringement, rightholders can be provided with information regarding the person or persons infringing intellectual property rights, their address, and details of the infringement itself, such as what was infringed (e.g. an MP3 of a particular song traded on a peer-to-peer service), and the quantity of infringing copies made. Article 8 states that this shall apply only to cases of commercial infringement. However, commercial infringement is not explicitly defined in the Directive, with the exception of stating that infringement on a commercial scale can be for direct or indirect economic benefit. There is the possibility then that the Enforcement Directive applies to individual file sharers on the Internet as well as large-scale counterfeit drug operations. Professor Ross Anderson of Cambridge University has argued that the Directive therefore has a disproportional effect on the privacy of individuals, stating that the Directive is a result of pressure brought by Hollwyood and the music industry to crack down on music copyingit is apparent that the main result will not be a reduction in music copyingliberty will suffer in many ways 15. One of the first cases dealing with this tension between privacy and enforcement of IP rights online is the Promusicae16 case. This case revolved around the right to information prescribed by Article 8 of the Enforcement Directive. In this case, Promusicae, a music industry group, requested the provision of information from Telefnica regarding its subscribers in order to bring civil infringement proceedings against them for infringement relating to the use of the file-sharing service Kazaa. Telefnica refused, stating that this would be a breach of the privacy of its subscribers. The matter was referred to the ECJ for a preliminary reference on this issue. The Court considered that there was an inherent conflict between Article 8 of the Enforcement Directive and Articles 5 and 6 of the Data Privacy Directive 17, which oblige ISPs and Member States to protect the confidentiality of communication and traffic data. Furthermore, Article 1 of the Data Privacy Directive states that Member States must ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector. This therefore indicates that aspects of the laws relating to the enforcement of intellectual property rights compete with laws relating to privacy. This tension is not aided by the Charter of Fundamental Rights, as while Articles 7 and 8 state that respect must be granted to the private life and that communications data must be protected, Article 17(2) states that the right to property, including intellectual property, must also be respected. Ultimately, the ECJ concluded at paragraph 58 of the decision that the Enforcement Directive does not require that Member States lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings. However, the decision of the ECJ in this case is somewhat unsatisfactory, as it advises Member States that they must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality18. This does little to address the tension between competing sets of Directives and fundamental rights, and instead leaves it to the Member State to determine for
15 Anderson, R. The Draft IP Enforcement Directive a Threat to Competition and Liberty, (2003) accessible at Ross Andersons Cambridge webpage at http://www.cl.cam.ac.uk/~rja14/draftdir.html (last accessed 24/10/2011) 16 Case C-275/06 Productores de Msica de Espaa (Promusicae) v. Telefnica de Espaa S.A.U. European Court of Justice (Grand Chamber) (29 January 2008) 17 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, [2002] OJ L 201/37 18 Promusicae at paragraph 70

themselves the balance between the enforcement of intellectual property rights, and respect for privacy. Finally, Article 13 provides for remedies in the case of a successful action for infringement. The Article allows for damages which take into account any lost profits, any unfair profits on the part of the infringer, or damages resulting from lost license revenues. The Directive is controversial, with many academics raising concerns as to its broad scope. One author argues, and to an extent the Promusicae case confirms, that the Directive does not appear to distinguish between 'distinguish between large-scale commercial infringement and counterfeiting enterprises from unintentional, non-commercial infringement of individuals' 19. Several notable academics contributed to an article which stated that 'considerable problems concerning the principles of subsidiarity and proportionality...the data on which [the justifications for the Directive were] founded were mostly compiled by interest groups and professional organisations from branches with a strong interest in enhancing the sanctions and measures presently existing for the protection of intellectual property'20, resulting in concerns over privacy remaining unconsidered. Furthermore, the EU appears to have had some difficulty in ensuring the enforcement of the Enforcement Directive. Although the Directive was to be implemented by October 2006, only 12 of the then-25 Member States had implemented it 21, and Sweden, France and Luxembourg only did so after action was brought against them by the Commission 22. Interestingly, despite the concerns raised by academics and interest groups over the Directive, the European Commission is now considering a Directive for the criminal-law enforcement of intellectual property rights. Consideration of this shall be given in the section of this chapter dealing with developing legislative initiatives. III Issues arising in the interrelation of copyright and new media This section of the chapter will address areas where intellectual property regimes fail to adapt to new media, hamper technological development or where more work needs to be done in order to ensure that creative works can be effectively exploited in the new media environment. This section of the report shall not only consider European legislation, but also analyse it in comparison with the US and national regimes. The first subsection shall consider the issue of ISP and intermediary liability, the second shall consider issues relating to TPM, the third shall consider transformative works and sampling, and the last subsection will consider issues of territoriality. As will be evident from the following sections, there are close links between these issues, in particular those of the role of ISPs, TPM and territorial restrictions. ISP and intermediary liability for copyright infringement As was stated above, the E-Commerce Directive sets out the safe harbour provisions with regard to ISPs, stating that they are no more than mere conduits of data, and therefore not legally liable for the information transmitted through their services. However, as the Internet becomes more heavily used, there have been a number of attempts to change the role of the ISP from mere
19 Kierkegaard, S. 'Taking a sledge-hammer to crack the nut: - The EU Enforcement Directive', [2005] Computer Law and Security Report 21(5) 488 at p.491 20 Drexl, J., Hilty., R. & Kur, A. 'Proposal for a Directive on measures and procedures to ensure the enforcement of intellectual property rights - a first statement', [2003] IIC 34(5) 530 at p.530 21 ipeg, 'Summary of the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights in EU Member States as of October 2006', October 2006 22 Cases C-329/07 Commission v France (13/07/2007), C-340/07 Commission v Luxembourg (19/07/2007) and C341/07 Commission v Sweden (20/07/2007) respectively

conduit to a form of active gatekeeper, with responsibilities to monitor data. For the purposes of this section, ISP and intermediary liability will only be considered as it relates to intellectual property. Although there have been no apparent attempts to remove the immunity under Articles 12, 13 or 14 of the E-Commerce Directive, there do appear to be efforts to begin to impose an obligation to monitor traffic. Although Article 15 of the Directive specifically states there is no such duty, recent ECJ case law appears to suggest differently. In particular, the case of LOreal v eBay23 dealt with an issue relating to infringement of LOreals trademark by a user on the eBay service. The High Court of England and Wales made a request for a preliminary reference from the Court on the question of whether a duty on the part of eBay to prevent the same or similar abuses in the future would act contrary to Article 15 of the E-Commerce Directive. According to the Advocate Generals opinion, a duty to prevent infringing conduct in the future would not breach Article 15, as the requirement of actual knowledge (in the E-Commerce Directive) seems to exclude construed knowledge. It is not enough that the service provider ought to have known or has good reasons to suspect illegal activity24. However, the Advocate General went on to state that if A has been discovered infringing trade mark X by listing an offer on the electronic marketplace in September, I would not exclude that the marketplace operator could be considered having actual knowledge of information, activity, facts or circumstance if A uploads a new offer of the same or similar goods under trade mark X in October25. The Advocate General stated that in such circumstances, the upload in October should not be construed as a new case of infringement of which eBay should be informed, but a continuation of the previous infringement, of which eBay has knowledge. Therefore requiring eBay to prevent future infringements of this type would not breach Article 15. In the decision of the Court given on 11th July 2011, the argumentation of the Advocate General was followed. In its judgement, it declared that Member States must: ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by users of that marketplace, but also to preventing further infringements of that kind 26. However, a case currently pending decision by the ECJ is that of Scarlet v SABAM 27. Advocate General Cruz Villaln gave an opinion on the case in April 2011 (which is only available in French on the Curia website). In this instance, a Belgian national court requested a preliminary ruling determining whether an ISP could be obliged to introduce, on all their customers, a filtering system as a preventative measure to prevent copyright infringement, at their own cost and for an unlimited time. The Advocate General noted that this would entail the filtering of all communications data through the system, blocking requests for data at the user end, or at the end at which the request is delivered. To do so, it was reasoned, would constitute a breach of Article 15 of the E-Commerce Directive, which prevents the creation of a general obligation to monitor, in addition to being an undue interference in the right to privacy of ISP subscribers. For this reason, it would appear that the issue of the duty of an ISP to pre-emptively prevent copyright infringement is in no way resolved. The future, and future interpretation of Article 15 will most likely depend on the ECJs decision in this case, and whether the view of the Advocate General is followed. The US Approach
23 Case C-324/09 L'Oral v eBay [2009] OJ C267/40 24 Advocate Generals Opinion on Case C-324/09 L'Oral v eBay [2009] OJ C267/40 at paragraph 163 25 Ibid at paragraph 167 26 Case C-324/09 L'Oral v eBay, decision (11/07/2011) 27 Case C-70/10 Scarlet Extended v Societe Belge des auteurs, compositeurs et editeurs (SABAM)

The United States approach to ISP/intermediary liability appears to have differed somewhat from the (so far) more diffident approach of the ECJ. The provisions of the TRIPS Agreement and WIPO Treaties were implemented in US law in the form of the Digital Millennium Copyright Act (DMCA)28. The conditions relating to ISP liability are contained in Title II of the Act, known as the Online Copyright Infringement Liability Limitation Act. In particular, it creates s.512 and adds it to Title 17 of the United States Code. Section 512 reads that a service provider will not be liable for monetary relief, injunctive or other equitable relief for infringement for the transmission of data (512(a)), caching infringing data (512(b)) or the storage of data (512(c)), unless the ISP becomes aware of the infringement and fails to act by removing, or making inaccessible the infringing works (known as Takedown Notices in the US). Furthermore, s.512(m) also provides that ISPs have no general duty to monitor the use of their services by users. In this way, the US implementation of the safe-harbour provisions appears to mirror that of the EU. Where the EU and US approach differs however is that whereas the question of a general obligation to monitor is currently being assed in the EU by the courts, the question is being tackled in the US by the legislature and executive. Interestingly, the US Immigrations and Custom Enforcement Agency (ICE), a subordinate body of the Department for Homeland Security, has begun seizing websites accused of copyright infringement on an executive basis without court order, citing the fight against organised crime and security concerns as the basis for such actions 29. This has included, for example, the seizure of over 70 domains in November 2010 that in essence blocked the websites in question, and replaced the pages with a warning from the Department of Homeland Security that wilful infringement of copyright carries a maximum penalty of five years imprisonment and a $250,000 fine30. However, as several news sources noted, the seizure of these websites by executive decision is not without problems. In particular, the risk of false positives during seizure appears to be substantial. In February 2011, ICE admitted it seized 84,000 subdomains by mistake, leaving messages which associated the removed websites with copyright infringement, counterfeiting offences and the distribution of child pornography 31. In this instance, rather than removing subdomains containing the infringing or illegal content, ICE instead seized the entire FreeDNS domain, which could be described as analogous to deep-sea fish trawling. This leads to issues relating to due process under US law, and Senator Ron Wyden has indicated that he considers that the seizure of domains without the requirement of Court involvement essentially constitutes Constitutional violations of the First Amendment regarding free speech, as well as stating that: the domain name seizure process does not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed. As you know, there is an active and contentious legal debate about when a website may be held liable for infringing activities by its users. I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court. The new enforcement approach used by Operation In Our Sites is alarmingly unprecedented in the breadth of its potential reach... 32 A particularly troubling development in US Internet policy is the drafting of a Bill to combat piracy online. The Bill started as the Combatting Online Infringements and Counterfeits Act (COICA),
28 Digital Millennium Copyright Act (1998) 112 Stat. 2860 29 Boorstin, J. Movie Piracy Crackdown Begins, Internet Sites Seized, CNBC News (30/06/2010) accessible at http://www.cnbc.com/id/38022758 (last accessed 27/10/2011) 30 Musil, S. US Seizes Sites Linked to Copyright Infringement, CNet News (26/10/2010) accessible at http://news.cnet.com/8301-1023_3-20023918-93.html (last accessed 27/10/2011) 31 TorrentFreak News, US Government Shuts Down 84,000 Websites By Mistake, TorrentFreak (11/02/2011) accessible at http://torrentfreak.com/u-s-government-shuts-down-84000-websites-by-mistake-110216/ (last accessed 27/10/2011) 32 As reported in Anderson, N. Senator: domain name seizures "alarmingly unprecedented", ArsTechnica (02/02/2011) accessible at http://arstechnica.com/tech-policy/news/2011/02/senator-us-domain-name-seizuresalarmingly-unprecedented.ars (last accessed 27/10/2011)

before becoming the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT-IP Act). As of 27 October 2011, the Bill is now called the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act, or the E-PARASITE Act. It is perhaps worth mentioning that the increasingly histrionic naming process for this Act suggests a certain level of emotiveness in the debates over the Bill. The text of the Bill states at s.103(2)(iii) that nothing in this (Bill) shall affect the limitation on the liability of a service provider under s.512 of Title 17 of the United States Code. However, the Bill itself, despite this assurance, appears to have this effect, as it in essence makes an ISP into an online enforcement agency, and appears to require that ISPs monitor traffic. The Bill requires that ISPs filter content to prevent access to foreign infringing websites, by ensuring that a website address entered into the address bar of a browser does not connect to that websites IP address. This of course does not prevent an Internet user from accessing that website, as long as they know the DNS for that website. Furthermore, search engines will have the duty to actively remove links to infringing content, under s.103 of the Bill. However, one key problem with the Bill is the definition of infringing website, which is construed incredibly broadly, being any site which contains infringing content. While it seeks to limit this in some way by stating that the blocking will only be of sites that have limited purposes other than infringing copyright or trademark under s.104, many actors are concerned that this will have an undue freezing effect and hamper technological development, as in the past, other technologies such as VCR recorders and cassette tapes, MP3 players and peer-to-peer file sharing software has been declared by Senators and the entertainment industry as serving no other purpose but piracy33. Furthermore, the Bill has been criticised by creative artists who state that the Act may be used to attack legitimate sites that we rely onsocial media websites could look like piracy havens for judges unfamiliar with the Internet 34, and that sites such as YouTube and Facebook, blogging websites and digital locker/cloud hosting services such as MediaFire or Dropbox could be argued as being havens for piracy in the same way that Rapidshare has, potentially leading to the sites being blocked in the US, or content being removed without cause to be removed. Interestingly, Human Rights Watch has agreed with this fear, and stated that not only does the Bill seek to make ISPs the police force of the Internet, but that this could makes nearly every actor on the Internet potentially subject to enforcement orders under the bill, raising new policy questions regarding government interference with online activity and speech 35. It would appear logically consistent to conclude that this Bill would have a dramatic impact on the role of ISPs on the Internet, changing their position from one of mere conduit to active gatekeeper which raises considerable questions over the safe harbour provisions more generally, and the statement of no general duty to monitor specifically. British and French attempts to combat piracy Some Member States of the EU have decided not to wait for further developments with regard to intellectual property protection at the European level, and instead have been involved in the development of national policies with regard to the role and function of ISPs in respect of copyright infringement. In the UK, this has taken the form of the Digital Economy Act 2010 (DEA), a controversial Act rushed through Parliament towards the end of the last session of Parliament before the 2010 elections in a period known as the wash-up, where supposedly non-controversial Bills are passed with a minimum of scrutiny. In the case of the DEA, during the third and final reading
33 Masnick, M. PROTECT IP Act renamed E-PARASITE Act: - Would Create Great Firewall of China, TechDirt (26/10/2011) accessible at http://www.techdirt.com/articles/20111026/12130616523/protect-ip-renamed-e-parasites-actwould-create-great-firewall-america.shtml (last accessed 28/10/2011) 34 Open Letter to the US Senatre and House of Representatives, Artists opposing the PROTECT-IP / SOPA Act, (14/10/2011) accessible at http://fightforthefuture.org/pipa/artists/ (last accessed 28/10/2011) 35 Letter to the US Senate by the American Association of Law Libraries, Human Rights Watch et al Re: S. 968, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (25/05/2011)

the Bill received little scrutiny, being passed by 189 votes to 47 after a mere two hours of debate 36. This represented less than half of the House of Commons 650 MPs. S.3 of the DEA states that ISPs must inform subscribers of allegations of copyright infringement made by copyright holders, which includes details of the IP address at the time of the alleged infringement, the alleged content which was infringed, and the details of the holder of the copyright. For example, a user may be told that an infringement was alleged against IP 208.132.2.1 on the 1 May 2010, in which the song Penny Lane by The Beatles was illegally downloaded from Rapidshare, with the holder of the copyright over the song, EMI records, making the complaint. This has a number of problems however, not least that an IP address is an inaccurate method of determining infringement. It does not accurately identify an infringing Internet user - according to one report, the most serious infringers, and those operating on a commercial scale, are likely to hijack computer systems, and either use Virtual Private Networks or IP spoofing in order to hide their tracks, leading to Internet users innocent of infringement being targeted erroneously 37. This could result in an infringement action being brought against, for example, a network printer in a company based in Manhattan, when in fact the infringing user was in fact an Internet user in a university residency in Oklahoma. With regard to the role of ISPs as intermediaries, as well as being required to pass on infringement notices to subscribers, the DEA requires that they become involved in the active restriction of Internet connections and the blocking on infringing materials. S.10 of the Act states that OFCOM, who have been charged with creating a Code of Obligations for ISPs in light of the DEA, may provide that ISPs limit the Internet traffic of users who have been suspected of infringement. These technical measures may include technical measures include the limiting of Internet speeds or bandwidth, preventing access to certain websites, materials or services, or the suspension of a internet provision service, according to s.9. Section 17 of the Act provides that in the future, the Secretary of State may create secondary legislation (such as a Statutory Instrument) that allows for the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright. S.17(1) states that this can be done against any location on the Internet, be it a nationally-based or foreign-based website, part of a website, a subdomain or even a domain, so long as it is used, or could potentially be used for copyright infringement. This seems a particularly broad definition, and could indeed incorporate blogs, social media sites or digital locker services. Section 17 of the Act is currently being reviewed by OFCOM on grounds of the workability of the section. According to Jeremy Hunt, Minister for Culture, Media and Sport, I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content. But it is not clear whether the site blocking provisions in the Act could work in practice so I have asked Ofcom to address this question 38. At the time of writing, this review has not yet been concluded. It is interesting to note, however, that the review of the section will not include issues such as the incompatibility with EU law or privacy concerns. If implemented, s.17 will have an impact on the role of ISPs, who it will be difficult to consider as being mere conduits if they have to take on an active censorship role on the Internet. A recent High Court decision has also called the role of ISPs in the UK into question. The Newzbin2 case39 decided on 21 October 2011 upheld the blocking injunction of Newzbin2, a Usenet indexing service that could be used to link Internet users to infringing content. The initial motion to
36 Farrand, B. The Digital Economy Act 2010: - A Cause for Celebration, or a Cause for Concern? [2010] EIPR 32(10) 535 at p.537 37 D. Sabbagh, Digital Economy Act likely to increase number of households targeted for piracy in The Guardian (12/04/2010), accessible at http://www.guardian.co.uk/media/2010/apr/12/digital-economy-bill-households-piracy (last accessed 27/10/2011) 38 Minister Jeremy Hunt, Ofcom to review aspects of Digital Economy Act, Department of Culture, Media and Sport (01/02/2011) accessible at http://www.culture.gov.uk/news/media_releases/7756.aspx (last accessed 27/10/2011) 39 20th Century Fox et al. v British Telecommunications Plc [2011] EWHC 2714 (Ch)

block Newzbin was made in July 201140. In this decision, Mr Justice Arnold determined that British Telecom should use Cleanfeed, a content blocking system, in order to prevent users from accessing the Newzbin service. BT tried to argue that such a measure would be in breach of Art. 15 of the ECommerce Directive, but Arnold J disagreed, stating at paragraph 162 that following the case of LOreal v eBay, the obligation to monitor was specific to the blocking of Newzbin, rather than general, requiring that BT block access to the Newzbin2 website by automated means that do not involve detailed inspection of the data of any of BTs subscribers. This does arguably have an effect on the relationship between service provider and consumers, and even if it does not create a general obligation to monitor, increasingly the role of ISP appears to be less one of mere conduit, and more one of an active gatekeeper. In France, the HADOPI (Haute Autorit pour la diffusion des uvres et la protection des droits sur internet) law was passed in 2009. The law was named after HADOPI, the government agency it created. The purpose of the HADOPI agency is to monitor the effective protection of intellectual property rights online. The law itself creates what is known as the three strikes law, which allows for the suspension of a subscribers Internet connection if alleged to have committed acts of copyright infringement on three separate occasions. The initial stage of the procedure is notification, which is similar to the UK system in that the time and IP address of the alleged infringement are given, but the object of the claim and the claimant are not specified. At this point, the ISP is obliged to monitor the Internet connection of the alleged infringer. This way, the ISP will be able to determine whether the user is involved in subsequent acts of infringement. If two more instances are identified, then the account of the user may be suspended. Arguably, on the basis of the LOreal case, this monitoring by the ISP of an individual account may not constitute a general obligation to monitor, based on the interpretation of monitoring one individual or website as a specific rather than general obligation. It does, however, demonstrate the changing role of ISPs. As Professor Sandra Braman states, ISPs can be considered as having taken on a deputising role, or, perhaps more accurately, have been deputised. She reasons that because of their gateway functions, ISPSare under an enormous amount of pressure to essentially serve as policing arms of government41. With national governments seeking to increase what they see as being the legitimate responsibilities of ISPs, it will be interesting to see whether the Scarlet v SABAM case is decided in such a way as to preserve the exemption from a general obligation to monitor, or whether it is construed in such a way as to ensure that ISPs monitor more actively. Irrespective of this, based on the decision of the LOreal case, and recent developments in several nations, it is becoming increasingly difficult to consider ISPs as mere conduits. Technological Prevention Measures As was previously mentioned at s.2.2 of this section of the Report, in the EU the protection of TPMs is codified in Articles 6 and 7 of the Information Society Directive. Originally, the main focus of TPMs was DRM technology (although DRM and TPM are often used interchangeably), and in particular, the copy-protection of MP3 files so as to prevent unauthorised copying. DRM technology can be defined as systems consisting of programming, codes and data embedded in digital content, electronics and computers42, although its remit is far wider and many secondary functions include data collection43. With regard to the Information Society Directive, the protection granted over TPMs was based on the belief that legal protection should be provided in respect of technological measures that effectively restrict acts not authorised by the rightholders of
40 20th Century Fox et al. v British Telecommunications Plc [2011] EWHC 1981 41 Braman, S. Internet Policy to be found in Consalvo, M. & Ess, C. (eds) The Handbook of Internet Studies WileyBlackwell (2011) at p.148 42 Stromdale, C. The Problems With DRM, [2006] Ent LR 17(1) p.1 at p.1 43 Ibid

any copyright (or) rights related to copyright44. However, it is worth noting that the protection granted in the EU goes beyond that required in the TRIPS Agreement and WIPO Treaties. In drafting the Information Society Directive, the Commission added an additional subsection to the section on the protection of TPMs, which stated that it is not only acts of circumvention that are prohibited, but also 'the manufacture, import, distribution, sale, rental, advertisement for sale or rental, the possession for commercial purposes of devices, products or components or the provision of services which are promoted...for the purpose of circumvention of...any effective technological measures'45. In comparison, the US restriction is much more similar to the original wording of the WIPO Treaties, stating in s.1201 of the amended code that no person shall circumvent a technological measure that effectively controls access to a work under this title. No restriction on the manufacture, distribution or sale of goods that may be used to circumvent TPMs is mentioned. As one author notes, the European prohibition is much more extensive than that under US law; the end-user is entitled to circumvent TPMs in order to engage in certain acts covered by the fair use doctrine such as private copying (for personal use), EU law, in contrast, requires Member States from even engaging in any such kind of circumvention 46. This in part was the reason why DRM technology proved highly unpopular with users if a copyprotected CD was bought, for example, it could not be ripped onto a personal computer, or converted into MP3 files in order to be used on an MP3 player. One such example was Copy Control, a system used by EMI and Sony BMG records. This system, used between 2001 and 2006, was highly controversial, not least because of the disclaimer attached with the CDs, which stated that except for defective product resulting from the manufacturing process and not otherwise disclaimed by this notice, no exchange, return or refund is permitted 47. This was contested on the grounds that not only could CDs not be ripped on computers, the way in with the DRM technology functioned prevented the discs from being played on a computer CD player, and in many instances, could not be played in car stereos either. Although the Copy Control system was discontinued in 2006 due to a combination of decreasing sales and negative publicity, the use of DRM technology does raise certain concerns. Patricia Akester, for example, argues that the use of DRM technology is increasingly used not solely to prevent file-sharing based piracy, but to limit the exceptions to copyright48. Article 6(4) of the Information Society Directive provides that where works are provided subject to contractual terms, copyright holders may prevent users from benefitting from all the exceptions to copyright. According to a study by numerous academics including Professor Bernt Hugenholtz, the contractual language used in the majority of licences examinedmay have a chilling effect on users who would like to use the protected material for otherwise legitimate purposes than strictly private non- commercial useRestrictive contract terms may therefore impede such legitimate uses such as music re- view, media studies and film critique, to name just a few examples49. Combined with the use of TPMs which physically prevent users from using the software (or music, or any other protected file format) any way except expressly allowed by the copyright holder, the ability of consumers to take advantage of the exceptions and limitations to copyright are strictly curtailed, with limited recourse. The breaking of the TPMs would constitute an offence under EU law, even if it were to use the file in question for something allowed under the exceptions provided for in Article 5 of the Information Society Directive. Unfortunately, as a system, DRM cannot distinguish between fair and unfair copying 50 to DRM, someone wishing
44 Information Society Directive, preamble paragraph 48 45 Ibid Art 6(2) 46 Mazziotti, G. EU Digital Copyright Law and the End-User', Springer (2008) at p.72 47 Reproduced at the website of the Campaign for Digital Rights, Corrupt audio discs, aka Copy Protected CDs (2005) accessible at http://cdr.xenoclast.org/issues/cd/docs/20030407.shtml (last accessed 27/10/2011) 48 Akester, P. The new challenges of striking the right balance between copyright protection and access to knowledge, in- formation and culture [2010] EIPR 32(8) 372 49 Hugenholtz, B., Eechoud, M., Gompel, S., Guibault, L. et al, The Recasting of Copyright & Related Rights for the Knowledge Economy, report to the European Commission, DG Internal Market, (November 2006), accessible at http://www.ivir.nl/publications/other/IViR_Recast_Final_Report_2006.pdf (last accessed 27/10/2011) 50 Marshall, L. Infringers, to be found in Frith, S. & Marshall, L. (eds) Music and Copyright, Edinburgh University

to rip a CD in order to distribute music on a peer-to-peer service or BitTorrent stream is indistinguishable to someone seeking to break DRM code in order to allow blind people to hear a text-to-speech conversion of an eBook. The fact that in the EU Article 6 prevents the circumvention of DRM technology even for lawful uses means that, unfortunately, the law does not distinguish either. An aspect of the use of DRM technology that must be considered is that of consumer harm caused by obsolescence. One example of this pertains to the Yahoo! Music Store. Yahoo! began running the store in 2005, offering a service in which users paid a subscription fee to access music which could either be streamed or downloaded in DRM-protected Windows Media Audio (WMA) files. Users would be able to transfer music to other devices such as MP3 players for an additional charge. In order to be able to play the music, users were required to be connected to the Internet in order for the files to be authenticated by the DRM authentication server. However, in July 2008, Yahoo! announced that they were discontinuing the music store. Furthermore, they announced that they were turning off the authentication servers in September 2008. This meant that the music could no longer be played, as it could no longer be authenticated. Yahoo! suggested to users that as a workaround, they could pay the additional download fee, burn the music to CDs, and then re-rip the music onto their hard drive. As one columnist put it, sure, you'll lose a bunch of blank CDs, sound quality, and all the metadata, but that's a small price to pay for the privilege of being able to listen to that music you lawfully acquired. Good thing you didn't download it illegally or just buy it on CD!51. Another example was the failure of Sonys Sony Connect service, which also closed in 2008 with the message that to ensure continued access to your content, we strongly recommend that customers archive their library to audio CDs and/or make a backup using SonicStage 52. As one paper suggests, this is currently a legal grey area, as the terms and conditions of such services allow the service providers to change the terms of the contract at any time in the future, including the termination of the provided service. As the music is not owned by the consumer, but instead merely allowed to play the music by means of a license, TPM-protected products or services they have purchased have been programmed to enable alteration of functionality without notice of the changes or an opportunity to object or to obtain a remedy for the lower value of the altered product or service53. One interesting aspect of TPM and TPM protection relates to the increasing reliance upon ISPbased filtering mechanisms. As mentioned in the previous section, the role of ISPs appears to be changing from being one of a mere conduit of data to a more active monitor and enforcer of Internet policy. This is not only the case in the EU, but also in the US, with some variances among Member States. If a user wanted to get around restrictions on content, such as those suggested in the SABAM and Newzbin cases, it may be possible to do so through the use of a proxy server, Virtual Private Network (VPN) or anonymising technology. Although it would be difficult to identify the user of such technologies, the use of such technologies are arguably contrary to Article 6 of the Information Society Directive, as they seek to circumvent technologies put in place for the protection of copyright holders. Under the proposed E-Parasite Act, it appears that the US will take the same approach as the EU when it comes to TPMs. Under s.103(d)(4)(ii) of the Act, injunctive relief may be provided against against any entity that knowingly and wilfully provides or offers to provide a product or service designed or marketed for the circumvention or bypassing of
Press (2004) at p.202 51 Anderson, N. DRM still sucks: Yahoo Music going dark, taking keys with it, ArsTechnica (24/07/2008) accessible at http://arstechnica.com/old/content/2008/07/drm-still-sucks-yahoo-music-going-dark-taking-keys-with-it.ars (last accessed 27/10/2011) 52 Reproduced by Doctorow, C. Sony kills DRM store your DRM music will only last until your next upgrade, boingboing (01/02/2008) accessible at http://boingboing.net/2008/02/01/sony-kills-drm-store.html (last accessed 27/10/2011) 53 Samuelson, P. & Schultz, J. Should Copyirght Owners Have to Give Notice of Their Use of Technoloigcal Prevention Measures? [2007] Journal on Telecomm. & High Tech L. Vol 6 41 at p.59

restrictions put in place which block access to infringing content. Should this Bill be implemented, then it appears to bring US law into line with Article 6(2) of the Information Society Directive, applying protection of TPMs not only from circumvention, but from services which may assist in circumvention. The wording of this subsection of the Act is problematic, as it seems that any entity that may possibly be used to circumvent copyright protection may be considered as being designed for such intent. This may lead to the consideration of proxy servers, for example, as being de facto infringement technologies, with restrictions as to their operation. This would be undesirable, as proxy servers have legitimate uses, and can be used for activities such as (more) safely criticising oppressive regimes or identifying and publicising governmental corruption. Submitters of information to WikiLeaks may well have relied upon proxy servers or VPNs in order to submit highly sensitive data. If such services were not allowed to operate, this would potentially cause significant harm, as Human Rights Watch pointed out in the aforementioned letter to the US House of Representatives. Territorial restrictions on copyrighted works Despite the legislation passed so far that concerns the harmonisation of copyright law with regard to the Internet, such as the E-Commerce, Information Society and Enforcement Directives, harmonisation has mainly taken a piecemeal approach, and has not been completely successful. One such gap in the harmonisation is the elimination of barriers between Member States for the digital distribution of copyrighted works. In the words of one academic, 'territoriality is the Achilles' heel of the acquis'54. As is reiterated in the Lagardre case55, copyright is territorially restricted by its very nature. The Lagarre case concerned the payment of royalties for transmissions from satellites to satellite receivers in two Member States. One receiver was based in France, and the other in Germany. The one in Germany was not intended for commercial viewing by German citizens, but nevertheless the satellite feed was viewable to individuals with satellite decoders in Germany. Therefore, the ECJ reasoned, the company in question was required to have licenses and pay royalties in both Member States to the respective collecting societies. The same problem exists with the exploitation of digital media, even legitimately, within the EU. For example, users of the iTunes service in France may only access the service in France, whereas users in Germany may only access the service in Germany 56. Furthermore, some Member States, particularly postAccession States, do not have access to the service at all. The same applies to free to air streaming television. The BBC iPlayer, which broadcasts on demand television programmes online, is only viewable in the UK due to licensing restrictions. Although it is possible to view the service by using a proxy server, this is technically a breach of the Information Society Directive Article 6 on TPMs. It is somewhat ironic, then, that the Internet, which is by its very nature borderless and allows for global access, is artificially restricted in order to comply with copyright legislation. The Commission has attempted to address this issue through the creation of Regulation 2005/737/EC57, reasoning that: We have made some progress with EU-harmonisation of copyright rules in the past years...however, this still has not allowed the creation of a single European market for content. The main obstacle for this is that copyright continues to be closely linked to national territories inside the EU. That content is licensed still at national level, and not for the entire EU. That collecting
54 van Eechoud, M., Hugenholtz, P. et al, 'Harmonising European Copyright Law: - The Challenges of Better Lawmaking' Wolters-Kluwer Publishing (2009) at p.307  55 Case C-192/04 Lagardre Active Broadcast v Socit pour la perception de la rmunration quitable (SPRE) [2005] ECR I-7199 56 As a general rule: - in fact, access is determined by the credit card used for payment of the service. This means the user is tied to the store located in the Member State where the bank issuing the credit card is based. 57 Commission Recommendation of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC)

societies stick close to national territories in their daily work, and that they also do so with regard to online licensing'58. However, the Commission ultimately chose to implement a Regulation rather than a Directive, reasoning that obtaining the level of consensus needed to achieve a Directive was unlikely to be achieved. As such, the Regulation states that Member States are invited to take the steps necessary to facilitate the growth of legitimate online services in the Community by promoting a regulatory environment which is best suited to management, at Community level, of copyright and related rights for the provision of legitimate online music services 59. In order to achieve this, the Regulation states that rightholders should be encouraged to entrust their rights to a collecting society of their choice for pan-European licensing, irrespective of the nationality of the rightholder/rightholding company or the nationality of the collecting society. However, the Recommendation has not been particularly successful, and collecting societies still tend towards operating on a strictly territorial basis. Realising the difficulties of achieving the goals of digital market harmonisation through the use of the Regulation, the Commission released a Working Paper as part of a Creative Content Online initiative, where it was stated that: 'multi-territory licensing and clearance would be appropriate for ISPs...some publishers and recording industries...creative businesses...are against multi-territory licensing and argue that sale of rights on a territorial basis has enabled right holders to extract the greatest value. (However) for ISPs and digital media organisations private copy levy regimes are increasingly burdensome and with the increased use of DRMslevies are no longer justified' 60. Nevertheless, there was a significant amount of hostility towards proposals for reform to the existing system from record labels and collecting societies, some of which felt they would be significantly damaged by multi-territory licensing agreements. As a result, the proposed Recommendation on Creative Content Online, which was due to be published in mid-2008 did not appear. Instead, in February 2009, the Commission announced that Brussels had planned to present actual proposals in the form of a Recommendation in April 2009, but the plan had been frozen 'after a radicalisation of the debate which has left no room for manoeuvre' 61. EMI Music and Universal Music Publishing Group in particular were extremely wary of any significant changes to the system that may in any way impinge on their pre-existing rights 62. The European Parliament was significantly concerned by these developments, and the choice of a Commission Recommendation. It expressed concern that encouraging bigger collecting societies to manage the repertoires of entire record labels would: 'negative effects...on local repertoires...given the potential risk of favouring a concentration of rights in the bigger (collecting societies), and whereas the impact of any initiative for the introduction of competition between rights managers in attracting the most profitable right-holders must be examined and weighed against the adverse effects of such an approach on smaller rightholders, small and medium-sized (collecting societies)' 63.
58 Commissioner Viviane Reding, 'Why Broadband Needs Content', IDATE 27th International Conference: - Content industries and broadband economics, Montpellier (23/11/2005) 59 Recommendation 2005/737/EC at preamble paragraph 2 60 Commission Working Staff Document accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Creative Content Online in the Single Market, COM(2007) 836 final (03/01/2008) at p.7 61 Information Society News, 'Commission shelves plans to curb online piracy', Euractiv, (16/02/2009), accessible at http://www.euractiv.com/en/infosociety/commission-shelves-plans-curb-online-piracy/article-179431 (last accessed 08/10/2011) 62 The submissions can be found at http://ec.europa.eu/avpolicy/other_actions/content_online/consultation_2009/comp/index_en.htm 63 European Parliament resolution of 13 March 2007 on the Commission Recommendation of 18 October 2005 on

This appears to be happening to a certain extent within the EU area. The four major record labels, which together hold the copyright to over 80% of all music sold, have begun to create joint ventures with collecting societies in order to be able to issue Pan-European Digital Licenses (PEDL). EMI was the first, creating the CELAS joint-venture with the UK's PRS for Music and Germany's GEMA collecting societies in 2006. It was followed by Warner Music, which created the PanEuropean Digital Licensing collective management group in June 2006, comprising Warner/Chappell, the publishing arm of the Warner Music Group, and the collecting societies PRS for Music, BUMA-STEMRA (the Netherlands), SACEM (France), SGAE (Spain), STIM (Sweden) and SABAM (Belgium). According to recent news, with the on-going debacle involving EMI's bankruptcy, Warner has made a statement of intent, publicly stating an interest in purchasing the ailing record label64. Should this come to pass, what it may mean for CELAS is unclear; it may continue to function in its pre-existing form on behalf of the EMI repertoire of Warner Music, or it may be subsumed into the PEDL agreement. The Universal Music Publishing Group made their agreement some time later, announcing in 2009 that it would appoint SACEM to 'license the and administer the online rights owned by UMPG together with those works from SACEM's repertoire'65, through the construction of a new agency, DEAL. Finally, SONY made an agreement with GEMA in February 2009 for the creation of Pan-European Central Online Licensing GmbH (PAECOL), which will license 'the Anglo-American mechanical repertoire of SONY/ATV Music Publishing in the field of online...services. The founding of PAECOL is based on the online recommendation of the European Commission from October 18, 2005'66. This appears to suggest that there has been a significant concentration of the market for collecting society services relating to digital music distribution, which may have potentially negative effects on the market. The concentration could have potential competition concerns. Professor Drexl stated, 'if individual administration of online rights is dominated by large companies...(and) would finally manage to exclude collecting societies from the market'67, potentially having negative effects on consumers and independent or niche artists. Due to this shift in market structure, and the ability of the major record labels to dictate to the collecting societies the price of licenses, the result is that collecting societies involved in these joint ventures take on a new role, adopting 'the role of agents and service providers for the publishers and will no longer act in the traditional sphere of the usual membership agreement and collecting societies' statutes'68, as was stated in the Commission Decision regarding the merging of Universal and BMG Music Publishing. The new arrangements are likely to have a substantially negative impact on right-users. As previously mentioned, rather than being able to go to one collecting society in order to gain a license for all music in one territory, in order to provide music from the Anglo-American repertoire, right-users must instead seek licenses from each licensing agency in order to be able to offer the 'full catalogue' of AngloAmerican music. As a result, the multi-territory licensing system implemented by several collecting
collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC) (2006/2008(INI)) C 301 E/64 (13/12/2007) at s.L. 64 McCabe, T. 'Warner Music Considers EMI Buyout Bid', TheStreet (15/11/2010) accessible at http://www.thestreet.com/story/10921708/warner-music-considers-emi-buyout-bid.html (last accessed 27/10/2011) 65 Press Release, 'Universal Music Publishing Group and SACEM Announce Name of Pan-European Licensing Model, as well as a Variety of Pan-European Deals with Major Internet Companies', UMPG Website (19/01/2009) accessible at http://www.umusicpub.com/news_readmore.aspx?ID=5018 (last accessed 27/10/2011) 66 Unfortunately, PAECOL does not have a website. This information came from the PRS for Music website, accessible at http://www.prsformusic.com/aboutus/press/latestpressreleases/Pages/EuropeanMusicRightsOrganisationsannouncecom mitmenttoDDEXmessagingstandards.aspx (last accessed 27/10/2011) 67 Drexl, J. 'Collecting Societies and Competition Law', accessible at http://193.174.132.100/shared/data/pdf/drexl__crmos_and_competition.pdf (last accessed 27/10/2011) at p.30 68 Commission Decision of 27 May 2007 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case No COMP/M.4404 Universal/BMG Music Publishing) C(2007) 2160, Brussels (27/05/2007) at paragraph 223 of the decision

societies with the major record labels has resulted in the similar market fragmentation with a slightly different form. Whereas previously, fragmentation of repertoire was by a national basis, in which a right-user would have access to the entire repertoire in a particular Member State, it is now the repertoire itself that is fragmented. In the words of a legal commentator, 'the clear result of the Commissions actions is the rights that music users need to secure have become more fragmented than before...this has led to much uncertainty about how to launch a legitimate music downloading service in Europe'69. It is also worth noting that this has not suddenly opened up the market for music to consumers despite some of these licensing agreements having been in operation since 2006, the catalogues held by those record labels and controlled by those collecting societies are not available on iTunes on a pan-European basis, but are still subject to territorial restrictions. In a joint statement from several of the smaller collecting societies in Europe, it was stated that the Commission did not consult with the smaller collecting societies prior to the publication of the 2005 Recommendation and that the new PEDL agencies would 'lead...to an over-centralisation of market powers and repertoires...which will unduly restrict the choices available to users and rightsholders, and as a consequence, severely undermine cultural diversity in Europe'70. The European Parliament was equally concerned, stating that resulting licensing agencies could have a 'negative effect...on local repertoires and on cultural diversity given the potential risk of favouring a concentration of rights in the bigger collecting societies'71. It may therefore be argued that the current regime of PEDL is not sufficient for ensuring benefit to consumers and cultural diversity in Europe, and a new system of licensing should be recommended. The European Commission has also expressed concerns as to the slow development of a Single Market for Digital Media. Releasing a final report on digital content online at the end of October 2010, the report appears to be based on the conclusions of a round-table held between the record labels and the Commission in late 2009, and states in its executive summary that the Commission should 'promote one stop shop solutions developed by the market, inter-operability between existing services and tools, as well as stronger co-operation between rights holders, users and technology stakeholders'72. The Final Report however does not appear to suggest much in the way of new solutions for the problems of removing the territorial restrictions in the EU area, noting with some frustration that with the failure of the Creative Content Online agenda, and the difficulties in roundtable negotiations that interventions in the field seem to disappoint both rights holders and users alike73. Furthermore, the Commission suggests that the best way to license music online has yet to be found74. It is also worth noting that although music has been used as a case study here as it has been the most focused-upon area with regard to the existence of territorial restrictions, the problems that are being experienced equally apply to creative works such as movies and movie downloads in the EU, as well as access to public television services offered within some Member States. If a user is unable to access the UK-based iTunes store, then it is even more unlikely that he will be able to access the BBC iPlayer, without relying on measures that are technically in breach of EU law pertaining to TPMs.
69 Miksche, H., Niemann, F. & Nissen, M. 'The battle for a unified media market', Bird & Bird (08/01/2010) accessible at http://www.twobirds.com/English/News/Articles/Pages/The_battle_for_a_unified_media_market.Aspx (last accessed 27/10/2011) 70 Joint statement issued by the Sociedade Portuguesea de Autores (SPA, the Portuguese collecting society), 'Comments on the Commission Recommendation of 18 October 2005 (2005/737/EC) on collective cross border management of copyright and related rights for legitimate online music services (2008) at p.1 71 European Parliament resolution of 13 March 2007 on the Commission Recommendation of 18 October 2005 on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC) (2006/2008(INI)) C 301 E/64 (13/12/2007) at s.L. 72 European Commission DG Information Society and Media, 'Multi-territory licensing of audio-visual works in the European Union', Brussels (October 2010) at p.9 73 Ibid at p.149 74 Ibid at p.158

Sampling and transformative works It has been argued that copyright has lagged significantly behind modern developments in technology and, in this current example, music production. As one author has reasoned, where revision in copyright laws have sought to address the new realities of musical practice that stem, in part, from technological innovations in music making, they have been adopted and applied in such an uneven fashion that confusion, inequality and the stifling of creativity have been the result 75. The advent of services that allow for the easy manipulation and transformation of copyrighted works, and their publication through YouTube, has meant that in many respects, everyone can be a creative artist (leaving aside questions of quality). Whether this is adolescents singing along to their favourite artist on their webcam and uploading the result to YouTube, to musicians remixing old works into new works, or the combination of a song with a video, or several videos, to create a personalised music video, digital technologies make it possible to be content creators rather than just content consumers. Remixing does not appear to be compatible with the Information Society Directive. Article 5 lays out the exceptions and limitations to copyright, and the only one that may potentially be applicable to sampling or transformative works is section (i) on incidental inclusion of a work or other subject matter in other material. This does not cover taking elements of one work and applying them in another work, such as taking scenes from the movie Armageddon and remixing them with REMs End of the World as We Know It to create a music video, but where a television programme happens to be on-screen during the recording of a personal movie. For this reason, remixing is unlikely to be protected under Article 5, even if the remixing is for non-profit purposes, and is just uploaded onto YouTube or Facebook to share with friends. In the US, however, it may be that the uploading of certain kinds of content constitutes fair use. In the case of Lenz v Universal76, Stephanie Lenz uploaded a 90 second video of her children dancing to Princes Lets Go Crazy. Universal, as the copyright holders over the song, issued YouTube with a DMCA takedown notice, stating that the video infringed upon their copyright. YouTube complied with the request, and removed the video, informing Ms. Lenz that the file was removed due to a copyright complaint. Ms. Lenz brought an action against Universal with the assistance of the Electronic Frontier Foundation, in order to sue for misrepresentation in the issuing of a DMCA takedown notice. Universal sought to argue that according to the wording of s.512, fair use was no defence to a takedown notice, as it only constitutes a defence to infringement, rather than a right that can be exercised by an individual. The Court determined, however, that although Congress did not explicitly mention the fair use doctrine in the DMCA, the Copyright Acts provides explicitly that the fair use of a copyrighted work...is not an infringement77. Furthermore, the Court stated that Universal appeared to act in bad faith in issuing takedown notices, attempting to remove any and all content containing music created by Prince, irrespective of any considerations of fair use. While Universal argued that copyright owners may lose the ability to respond quickly to infringements if each takedown had to be assessed on its merits, the Court stated that the likely impact of this was overstated, as most cases would not be overly complicated, and furthermore, the DMCA already requires copyright owners to make an initial review of the potentially infringing material 78 before issuing a takedown notice. For this reason, the judge denied Universals application to dismiss the suit. While a final decision has not yet been made in this case, it does provide some evidence at least to suggest that some types of uploaded content, such as children singing along to a song by a popular artist, will be protected under fair use provisions in the US.
75 Thberge, P. Technology, Creative Practice and Copyright to be found in Frith, S. & Marshall, L. (eds) Music and Copyright, Edinburgh University Press (2004) at p.137 76 Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (20/08/2008) 77 Ibid at pp.4-5 of the decision. 78 Ibid at p.7

However, when considering the remixing of music, or creation of personalised music videos, these uses may not fall within the fair use doctrine. Academics such as Lawrence Lessig and Yochai Benkler are concerned about this. In his book Remix, Lessig argues that the remixers of today become the artists of tomorrow, and that remixing forms a valuable sense of community cohesion online79. By criminalising (or at the very least, actively taking down content and/or suing infringers) younger generations, he reasons, we risk not only alienating that generation, but also watering down genuine protections of copyright. Where remixing is non-commercial in origin, it should constitute fair use. Professor Benkler agrees in the Wealth of Networks80, stating that social or peer production radically changes the role of individuals on the Internet. He points to many collaborative projects, such as the creation of Linux, or the seti@home projects, and how they do not fit into the traditional conceptions of intellectual property. It may be that the increasing popularity of the Creative Commons is a reaction to the ill-fitting nature of copyright online. Many artists are turning away from the traditional system of protection, instead relying on a radically different set of protections given by the Creative Commons, which interestingly focus more on the moral rights than economic rights. Creative Commons licenses are highly flexible, and the official website of the Creative Commons movement provides a simple set of questions which a user can answer to determine which kind of license they would like to issue 81. Creative Commons licenses can include attribution only, which allow people to use and share their work, so long as the work is redistributed with attribution to the original creator. Licenses can also be share-alike, in that modifications to the work are permitted, so long as you continue to allow others to also make edits to that work. Works can also be licensed on a commercial or non-commercial basis. It is also possible to combine all three aspects together, creating for example an attribution, share-alike, noncommercial license. Or a attribution, no derivatives, commercial license. Creative Commons appears to offer a level of flexibility to creators that they do not benefit from with regard to traditional copyright and licenses. The Creative Commons movement has also created a database that gathers together a list of all the music that is freely available for remixing purposes 82, providing musicians with the basis for the creation of new works. Some academics have criticised the Creative Commons. Professor Elkin-Koren has argued that the Commons movement lacks a core perception of freedom in information, (which) may lead to ideological fuzziness. This could interfere with the goal of offering a workable and sustainable alternative to copyright83. In other words, Creative Commons tinkers with ideas of ownership, and a readjustment of licensing while not considering any real reform of the copyright system itself. The proliferation of licenses, it is argued, does more to muddy the waters than it does to simplify or improve the system. Instead, focus should be given on reforming copyright law to make it more applicable to increased digitisation, as well as reconceptualising copyright and creativity. Others disagree with the Creative Commons for other reasons, such as the belief that it not only erodes copyright protection, but also creativity. In his book You Are Not a Gadget84, Jaron Lanier states that increased Internet community-based creation, and everyone uploading all their personal, amateurish works onto the Internet dilutes art, and devalues artistic and intellectual achievement, as everyone copies everyone else and remixing rather than originality become the norm. IV Future legislative developments
79 Lessig, L. Remix: - Making Art and Commerce Thrive in the Hybrid Economy, Penguin Press (2008) 80 Benkler, Y. The Wealth of Networks: - How Social Production Transforms Markets and Freedom Yale University Press (2006) 81 See http://creativecommons.org/choose/ 82 See http://creativecommons.org/legalmusicforremixing 83 Elkin-Koren, N. Exploring Creative Commons: - A Skeptical View of a Worthy Pursuit (2006) at p.1, draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466 84 Lanier, J. You Are Not a Gadget: - A Manifesto Knopf (2010)

There are currently two main legislative initiatives that may potentially have a significant impact on the application of copyright law on the Internet. At the international level is the Anti-Counterfeiting Trade Agreement (ACTA). The ACTA Agreement is a treaty negotiated between the US, the EU, Australia, Mexico, Japan, South Korea, New Zealand, Morocco, Canada, Singapore and Switzerland. Interestingly, the BRIC nations (Brazil, Russia, India and China) were not invited to participate. Little was known about these talks, as they took place in absolute secrecy. This secrecy was criticised by activists throughout the world, such as the Electronic Frontier Foundation (EFF) in the US, who stated that 'disturbingly little information has been released about the actual content of the agreement'85. Most information about the Agreement came in the forms of leaks, which contained concerning details. The amount of negative publicity this caused led the Commission to release a deliberative draft to the public, which contained the suggestion that 'each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Wilful copyright or related rights piracy on a commercial scale includes a) significant wilful copyright or related rights infringements that have no direct or indirect motivation of financial gain...86. This would appear to indicate that the ACTA Agreement is intended to create criminal sanctions for conduct not limited to large-scale criminal organisations involved in commercial level infringement, but also for individuals who share large amounts of data on file-sharing networks. The final version of the Agreement changed the wording substantially, to read that Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage87. However, there is the potential that individual infringers may potentially be considered as gaining an indirect economic advantage from file-sharing, which may potentially allow for the criminal prosecution of individuals for digital copyright infringement. The ACTA negotiations have caused concern because they have been negotiated outside of the usual WTO/WIPO framework that is customarily used for the negotiation of IP-related agreements. India and China believe that the substance of ACTA goes far beyond what is permitted in the TRIPS agreement, placing an undue burden on developing nations by creating an Agreement that is more restrictive and less flexible than TRIPS, and declared their opposition to the Agreement at a WTO summit in June 2010. Michael Geist believes that the sidelining of the WTO and the attempt to negotiate a plurilateral Treaty outside of the usual framework is because it circumvents possible opposition from developing countries...there will be a concerted effort to transform a plurilateral agreement into a multilateral one...' 88 after the completion of negotiations. As it stands, all members with the exception of the EU, Switzerland and Mexico have ratified the Agreement. In the EU, the Agreement is currently being scrutinised by the European Parliament. The Agreement itself is subject to a large amount of criticism, in particular by legal academics. A text signed by over 90 academics was released by the Washington College of Law criticised the Agreement for criminalising conduct, encouraging Internet-based surveillance and policing by ISPs and reinforcing TPM protections and sanctions for circumvention89, all of which are mandated by Article 5 of the Agreement. The ACTA Agreement seems therefore to reinforce the requirements laid down in
85 EFF Our Work section, 'Anti-Counterfeiting Trade Agreement', EFF (last modified 04/08/2010) accessible at www.eff.org/issues/acta (last accessed 27/10/2011) 86 Anti-Counterfeiting Trade Agreement Public Predecisional/Deliberative Draft, April 2010, accessible at http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf (last accessed 12/08/2011) at Article 2.14(1) 87 Anti-Counterfeiting Trade Agreement (2011) at Article 23(1), accessible at http://ec.europa.eu/trade/creatingopportunities/trade-topics/intellectual-property/anti-counterfeiting/ (last accessed 28/10/2011) 88 Geist, M. 'The ACTA Threat to the Future of WIPO', Intellectual Property Watch (14/04/2009) accessible at http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo (last accessed 27/10/2011) 89 Washington College of Law, International Experts Find that Pending Anti-Counterfeiting Trade Agreement Threatens Public Interests, American University Washington College of Law (23/06/2010) accessible at http://www.wcl.american.edu/pijip/go/acta-communique (last accessed 28/10/2011)

national legislation, in addition to creating the potential for criminal sanctions to be implemented against individual infringers. At the EU level, a proposal for a Criminal Enforcement Directive has been revived. Initial attempts were made to create a Directive proposing criminal sanctions for intellectual property infringement in 200790, but due to outcry from both consumer groups that considered the Directive to be disproportionate, and some Member States which believed that the proposal went beyond the competences of the EU, the proposal was shelved. However, in 2010, the Commission announced that: 'Counterfeiting and piracy appears to be increasingly linked to organised crime raising security and safety concerns and is also proven to be spreading over the Internet...the Commission is currently analysing to what extent protection of intellectual property rights through criminal law via a harmonized directive on criminal measures is necessary to supplement the enforcement of intellectual property rights through civil law...' 91 It would appear then that the Commission is intent on reviving the Criminal Enforcement Directive. It may be that aspects of the ACTA Agreement, such as the requirement of ISPs to monitor traffic, in addition to increased protections for TPMs may form part of the substance of the Directive, in addition to the application of criminal sanctions. However, until a draft of the Directive is released, it is difficult to speculate on whether the Commission intends on fully criminalising copyright infringement or not. It will be interesting to see whether there is more success in passing the Directive in 2011/2012 than there was in the attempts in 2007.

90 Amended Proposal for a Directive of the European Parliament and Council on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights, COM/2006/0168 final COD 2005/0127 91 Commission Staff Working Document, 'Analysis of the application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights in the Member States' SEC(2010) 1589 final (22/12/2010) at p.25

3. REGULATION OF NEWS AND PSB CONTENT IN NEW MEDIA

This chapter will look at the regulation of three areas of news and content in new media: blogs and blogging; the WikiLeaks case; and public service broadcasters' use of new media.

I Blogging 'Blog' is a blend of the term 'web log' and is a website which is updated with new content from time to time, often by an individual or group of individuals, although other actors, such as corporations NGOs and public bodies have also started to use blogs in more recent times. Blogs have been characterised as a new kind of citizen/participative journalism, and in particular one which bypasses traditional media structures and presents fresh news, ideas and points of view by new writers who are not necessary employees or owners of large media organisations.92 In addition, a real innovation of blogs is that they allow users to interact with news and opinion by posting comments or writing their own blog posts in response, thus enhancing users' free expression online, and representing a profound change from their position vis--vis 'old media' i.e. either passive TV viewers or radio listeners, or newspaper readers who may at most write a letter to the editor (whether it is published or not is a different matter). Indeed, as part of his more general discussion on 'social production', Benkler conceptualised this new means of disseminating information as a 'threat' to the traditional media establishment.93 Regulation of blogs Thus far there is no specific regulatory regime for blogs. Regulation so far has mostly been conducted via the general legal regimes, especially defamation and copyright law. European Union At the European Union level, there was a report adopted by the European Parliament's Culture Committee in June 2008 on the regulation of user-generated content and blogs which advocated 'clarifying' the status of blogs and the establishment of a 'right to reply', as well as noting the 'challenges' posed by blogs relating to ethics and privacy and the placing of 'journalists and other media professionals under pressure'.94 This resulted in the Parliament adopting a non-binding resolution in September 2008, which 'encourage[d] an open discussion on all issues relating to the status of weblogs'.95 National jurisdictions This report will take events in the United Kingdom and Italy as examples of how national jurisdictions in Europe have managed blogs. United Kingdom Blogs are not currently subject to any specific regulation in the UK. However, in 2009 the head of
92 It should be noted however that it is far from the case that all blogs are on political matters, or other subjects traditionally dealt with by journalists. 93 Benkler Wealth of Networks 2006 Yale University Press. In fact, recent events (Arab Spring, UK student protests and riots) seem to show that social production in the form of social networking sites such as Facebook and Twitter bear more of a 'threat' at least to the political establishment in both authoritarian and liberal democratic regimes, if not also the corporate establishment. 94 http://www.europarl.europa.eu/sides/getDoc.do?language=en&type=IM-PRESS&reference=20080605STO30955 95 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-0459&language=EN

the Press Complaints Commission (the self-regulatory body overseeing the British printed newspapers and magazines industry), Baroness Buscombe stated that she had ambitions for her organisation to extend its ambit into the regulation of blogs as well. 96 There has been one major case in the UK regarding the anonymity of bloggers, that of The Author of A Blog v Times Newspapers,97 also in 2009. The blogger was a policeman who wrote about his experiences in his job anonymously, and requested an injunction against the Times Newspaper, which was threatening to publish his real identity. Eady J rejected the request, ruling that 'blogging is essentially a public rather than a private activity', equating the use of blogs at least in the case at hand as 'analogous' to journalism, and concluding that the blogger had no reasonably expectation of privacy in respect of his identity. Regarding defamation, at the time of writing, the British government is considering new legislation on this topic, with the publication of a consultation on a draft Defamation Bill in March 2011. 98 Section 1 of the existing Defamation Act 1996 contains a defence available to people who are not the author, editor or commercial publisher of a defamatory statement, that secondary publishers such as ISPs can use so as not to be liable for third party content which is defamatory if they can show that they took reasonable care in relation to its publication and they did not know that their action caused or contributed to the publication of a defamatory statement, but the consultation on the draft bill mentions that this provision may not be sufficiently clear and protective of secondary publishers given developments on the Internet such as the prevalence of user-generated content. The consultation also mentions that thus far the legal position relating to defamatory content in blogs and discussion forums is not well-established in case-law, but e.g. a blog owner could be viewed as having editorial control over the content of posting and thus the opportunity to remove any material considered to be potentially defamatory, in the absence of which potentially being liable for defamation due to that content. The consultation solicits responses on reform of this provision given the new technological environment. In October 2011, a Parliamentary Joint Committee published a report on the bill, which also commented on the issue of Internet publication.99 The Committee proposes that there should be a new notice and take-down procedure to cover defamation in the online environment. It recognises that the current law in this area in fact encourages Internet hosts and service providers 'to ignore any dubious material but then remove it without question following a complaint', which can on the one hand leave defamatory statements online for long periods of time, and on the other hand, once a complaint is received and material is removed, this can also result in entirely legitimate comments being taken down. Thus the recommendation to the government is that pressure on hosts and service providers to take down material challenged as defamatory should be reduced (in line with the protection of free speech) and that site owners should be encouraged to moderate content written by its users in a way which balances free expression and the protection of reputation. Regarding the procedure for taking down material, the committee distinguishes between material which is identifiable in terms of authorship and that which is not. With identifiable material, the committee suggests that once a complaint is received about it being allegedly defamatory, the host or service provider should publish a notice of complaint alongside that material, but is not required to remove the offending material, and so this protects free speech. If the person making the complaint wishes, they can also apply to a court for a take-down order. Regarding unidentified material, the recommendation is that any such material should be taken down by the host or service provider on receiving a complaint, unless the author responds to a request to identify themselves, in which case the procedure for identifiable material should be followed. If the host or service provider believes
96 97 98 99 http://liberalconspiracy.org/2009/11/17/blogging-and-pcc-regulation-a-collective-response/ [2009] EWHC 1358 (QB). Full text of case available at: http://www.bailii.org/ew/cases/EWHC/QB/2009/1358.html http://www.justice.gov.uk/consultations/draft-defamation-bill.htm http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/20302.htm

that there are significant public interest reasons that justify publishing the unidentified material then it can apply to a judge for an exemption from take-down, and secure a leave-up order. If hosts and service providers comply with these rules, then they should not be liable for defamation. The committee believes that this procedure should apply equally to online sites that are moderated and those that are not. The committee also makes its wish known, hoping that 'over time, people will pay less attention to and take less notice of material which is anonymous'. Italy Italy as well as seen litigation relating to blogging, as well as proposals for legislative regulation of blogs. The case-law has demonstrated two opposing tendencies: one to equate blogs and blogging to newspapers and journalism, and the other to deny such an equation. To demonstrate the latter tendency, in an early case from 2000 which encompassed a defamation action against material posted on a blog, the Tribunale of Oristano held that the Italian legal provisions applicable to defamatory statements which occur on the radio, on TV, or in the press, could not be applied to defamation which occurs via a blog on the Internet. 100 Furthermore, in 2007, the Corte di Cassazione held that people posting comments in an online forum could not come under the notion of 'the press', and the fact that the messages were visible to all, or at least those who had registered for the forum, did not make it an 'editorial product' or equivalent to an online newspaper, and thus not subject to the obligations of protection that are incumbent upon the press. 101 Nevertheless, in demonstration of the tendency for courts to equate blogging with print journalism, a decision from the Tribunale di Modica found that a blogger was guilty of running an illicit/'clandestine' publication, since the blogger did not register his site with the court, in accordance with the rules for the registration of (print) newspapers and magazines. 102 According the court, this requirement was incumbent upon online journalism which had the same characteristics and nature as paper or radio and TV journalism i.e. regular publication, an identifying title and the dissemination of information about current affairs to the general public. Moreover, in a recent case from 2011, the Corte di Cassazione ruled that it was admissible for a blogpost containing allegedly defamatory statements to be removed pre-emptively. 103 Regarding legislation in Italy, a highly controversial bill is being debated in the Italian Parliament at the time of writing. The proposed law, known as 'DDL intercettazioni' ('Wiretapping Act'), contains a provision (paragraph 29), which would require all websites, on receiving a complaint regarding allegedly defamatory material on the website, to publish within 48 hours of receiving the complaint a correction of any content that the person making the complaint deems detrimental to her image. 104 There is no mention of any evaluation of the claim by a judge, and regardless of how truthful the information deemed as offensive is. The law has been termed 'ammazza blog' by its critics due to the severe chilling effect that it may have on sites and platforms hosting user-generated content,
100http://www.ictlex.net/?p=890 101http://www.ictlex.net/?p=999 102http://www.ictlex.net/?p=948 103http://www.ictlex.net/?p=1241 104The text of most recent version of the paragraph is available here: http://www.camera.it/Camera/view/doc_viewer_full?url=http %3A//www.camera.it/_dati/leg16/lavori/stampati/pdf/16PDL0038530.pdf&back_to=http %3A//www.camera.it/126%3FPDL%3D1415-B%26leg%3D16%26tab%3D2%26stralcio%3D%26navette%3D

such as blogs. In addition, the Italian version of Wikipedia saw it as such a threat to its operation that for two days from 4 October 2011 it hid its Italian-language content and instead posted a Communication on the law and the adverse effects it may have on the service. 105 Comparison with the US Anonymity and defamation online was dealt with in the Delaware Supreme Court decision in Doe v Cahill in 2005, in which allegedly defamatory comments were made about a local politician in a blog by an anonymous Internet user. 106 The decision of the Delaware Supreme Court permitted the Internet user to remain anonymous in the case at hand, and adopted a summary judgement standard for cases of this kind to strike a balance between the protection of anonymous Internet speech in accordance with the First Amendment and a defamation plaintiff's right to protect his reputation. This would entail that the anonymous poster should be notified that he is the subject of an application for disclosure, and the poster should be given a reasonable opportunity to file and serve opposition to the application; on a blog or forum, this should include posting a message of notification of the request to the anonymous poster on the same message board as the original allegedly defamatory posting. Then the 'summary judgement standard' should be satisfied i.e. that there is a prima facie case for the defendant to answer. Regarding liability for comments posted on blogs, in 2005 Traffic-Power.com, a search engine placement company filed a lawsuit in a Nevada District Court against Aaron Power, who had a blog on search engine optimisation alleging defamation and the publication of trade secrets. 107 The blog included posts by unnamed readers of the blog that were highly critical of the tools sold by TrafficPower.com. The case was dismissed for a lack of personal jurisdiction, 108 and so the question of liability was left open. Analysis of measures taken so far There appears to be two main issues regarding the regulation of blogging given the examples above. Firstly, the question of the anonymity of bloggers and people posting comments on blogposts has been dealt with differently by the different jurisdictions: in the UK the maintenance of anonymity seems to be characterised as undesirable, and seems to be undesirable also beyond the specific situation of defamatory comments being made by an anonymous Internet user; whereas in the US anonymity is protected by the First Amendment (at least in the case of the online criticism of a politician). The British view on the undesirability of anonymity may turn out to be a tendency which could have a chilling effect on free expression online. Secondly, there is the issue of the equation of blogging with traditional journalism. This has been done to some extent in the regulatory responses seen above. Nevertheless, in doing so, there are responsibilities to be discharged as well as rights to be enjoyed, such as of course the questions around alleged defamation as seen above, as well as around the truthfulness of reporting, etc. There are many different types of blogs, some ranging from being maintained by large, well-organised corporations, to those which are small, personal, non-profit operations. The former seem much better placed to be compared to traditional journalism than the latter, and cognisance of this difference should guide regulation and policy at least as regards these responsibilities, rather than assuming blogs are a monolithic category, since they may well have different capacities with which to fulfil regulatory obligations. This subtlety seems to be completely overlooked, or indeed not at all taken into account, by the British Parliamentary Committee's response to the Defamation Bill with regards to
105http://it.wikipedia.org/wiki/Wikipedia:Comunicato_4_ottobre_2011 106Doe v. Cahill, 884 A.2d 451 (Del. 2005) 107http://online.wsj.com/public/article/SB112541909221726743-_vX2YpePQV7AOIl2Jeebz4FAfS4_20060831.html? mod=blogs 108http://www.seobook.com/decision-on-motions.pdf

the procedure it suggests for dealing with potentially defamatory material. For the blogosphere in general, there has been an interesting development in the merger in the US of popular blog the Huffington Post and online services company AOL, which may entirely challenge the idea of blogs and blogging being inherently different to traditional journalism and therefore a 'threat' as Benkler posited: the merger shows the ability of blogs, especially successful ones such as the Huffington Post, to be co-opted by the more traditional media establishment, or at least by 'business models that seek to commodify knowledge and control its access and distribution'.109 Blogs may thus not so different then to previous newsgathering and dissemination inasmuch as they can be easily commodified, corporatised and sold to major multinational companies. Nevertheless, one feature of blogs thus far has been that contributors have usually provided their services for free, unlike the traditional model of salaried journalists. Nevertheless, in the AOL Huffington Post merger, instead of this free-economy subverting the capitalist media system, the bloggers' efforts in fact contributed to the monetary value of the Huffington Post, which was realised in the merger. III WikiLeaks In the last year, WikiLeaks has emerged strongly as a new phenomenon in Internet news-gathering and publishing. It is a non-profit media organisation, now based in Iceland, that via its website wikileaks.org publishes information, often which has been leaked to the organisation from whistleblowers inside governments and corporations. It claims to provide a secure and anonymous way for sources to leak this information to its journalists. Its focus over the last few years has been on the US government, with releases comprising information about the Afghan and Iraq wars and the Guantanamo Bay detention camp, which were posted to its website. In November 2010 it commenced its most prominent release: 250,000 cables comprising classified documents detailing correspondence between the US State department and its diplomatic missions around the world. In order to maximise media exposure, WikiLeaks collaborated with five 'old media' publications (the newspapers Der Spiegel, El Pas, Le Monde, the Guardian and the New York Times), which were given prior access to the material on the condition that they complied with common deadlines over when the material was released, with the result of this being that the correspondence was released in parts over the course of many days, dominating newspaper headlines worldwide. These diplomatic cables contained classified information comprising comments on world leaders, foreign states, and various international and domestic issues. Obstacles to WikiLeaks Despite the reaction of the American political class being generally condemnatory of the decision to publish this information publicly, and reports of the US Justice Department considering charging Julian Assange, the founder of WikiLeaks, with espionage offences based on the release of the cables, so far no formal legal action (such as injunctions) has been taken against WikiLeaks. Nevertheless, that did not prevent corporations providing services to WikiLeaks from ceasing to provide these services subsequent to the release of the Embassy cables, including Amazon.com which was hosting the WikiLeaks website, various banks and payment processing companies that refused to provide funds to WikiLeaks (Bank of America, MasterCard, PayPal and Visa), EveryDNS which was WikiLeaks' hosting provider in the US, Tableau Software which provided data visualisation software to WikiLeaks and Apple, which pulled a WikiLeaks app from its App Store.
109 Balkin, Jack M., The Future of Free Expression in a Digital Age (January 29, 2009). Pepperdine Law Review, Vol. 36, 2008. Available at SSRN: http://ssrn.com/abstract=1335055

In at least the case of Tableau Software, they acknowledged that they ceased providing services to WikiLeaks after a 'request' from Senator Joe Lieberman.110 The other companies claimed that their motivation for ceasing to provide services to WikiLeaks was due to its behaviour (potentially) violating their internal policies, either because WikiLeaks did not have rights over the content, the publication of the content could endanger 'innocent people' (i.e. those persons whose names were mentioned in the leaked cables), or because WikiLeaks was more generally engaged in 'illegal' activity or encouraging others to engage in illegal activity (i.e. the actual leaking or dissemination of the leak of classified documents). Despite the efforts of these corporations to block access and funds, and disable Wikileaks, they did not entirely succeed: due to 'mirror' sites and alternative means of processing payments to WikiLeaks being set up, the site was still operational. Nevertheless, in October 2011 WikiLeaks announced that it was temporarily suspending its publication activity due to its inability to receive adequate funds because of the 'blockade' by the banks and payment processing firms, and warned that it may have to close entirely if the situation does not change. 111 Legal protection for WikiLeaks' activity WikiLeaks is evidently not a traditional press organisation, and indeed is not in a traditional scenario of press censorship. It is hitherto unproven that WikiLeaks actually acted illegally in disseminating the Embassy cables, or that it did not have rights over the content since there has been no authoritative legal pronouncement on the matters. Furthermore, even if an illegal act was committed by the person who leaked the information to WikiLeaks, Benkler considers that WikiLeaks in disseminating that information enjoys the protection of the First Amendment vis--vis any prosecution by the US Government, since it can be equated to the definition of 'journalist' established in case-law, i.e. that in the act of gathering news, the intent was to gather it for public dissemination, which is exactly what WikiLeaks did.112 However, in practice the attempts to censor WikiLeaks did not come directly from the US government, but instead from the private corporations which cut off services to the organisation. Indeed, this was a much more effective way of trying to silence WikiLeaks since these corporations are not subject to the same constraints regarding the protection of free expression as the government, namely the First Amendment in the US and Article 10 of the ECHR. Europe has also been a key location for the WikiLeaks controversy since along with the US it has been the primary arena for the events and the geographical location of most of the actors involved, whether government, corporate, civil society or human individual. As regards the use of the legal instruments to protect free expression, in the case at hand Benkler also recognises the difficulty in a First Amendment action in these circumstances. Certainly a direct action against the private providers under the current conception of the First Amendment is not possible, and it would be extremely difficult to bring action against the government or its officials due to any pressure from the government that was applied to these private actors being indirect and subtle. Article 10 of the ECHR is usually conceived of as a negative right, with limited horizontal effect in disputes between private parties, and would also probably be insufficient to censure the corporations for their behaviour through the ECHR apparatus.
110http://www.guardian.co.uk/world/blog/2010/dec/03/wikileaks-tableau-visualisation-joe-lieberman 111http://www.guardian.co.uk/media/2011/oct/24/wikileaks-blockade-julian-assange?INTCMP=SRCH 112Benkler, Y. A Free Irresponsible Press: WikiLeaks and Battle over the Soul of the Networked Fourth Estate 2011 forthcoming Harvard Civil Rights-Civil Liberties Law Review. Available at: http://benkler.org/Benkler_Wikileaks_current.pdf

However, WikiLeaks may be able to seek legal recourse through the alternative pathways of private law. In the case of Apple (if it can constitute a monopoly over the provision of apps in its App Store ) and the payment processing firms (which may well constitute an oligopoly), then competition law could provide a solution. Furthermore, Benkler also recognises that contract and tort may present possible routes by which WikiLeaks can seek redress, and in Europe the 'constitutionalisation' of contract law in some jurisdictions (especially Germany, the Netherlands and the United Kingdom), which has witnessed the increasing application of fundamental rights to this regime, may also aid WikiLeaks in a contractual action against a service provider which ceased to provide the service. Analysis The WikiLeaks situation shows the inadequacies of the current legal protections of free expression for the Internet context, and highlights the extent of private entities' control over the Internet and the information disseminated over it. This gives cause for concern more generally over civil liberties online: as MacKinnon puts it, '[w]hat is troubling and dangerous is that in the internet age, public discourse increasingly depends on digital spaces created, owned and operated by private companies'.113 Pragmatically, entities such as WikiLeaks still retain the possibility of jurisdiction-shopping for the most favourable (virtual or physical) climate for online free expression e.g. by using servers based in such a jurisdiction, and engaging the services of companies also based there. For the continued and future enjoyment of free expression online, there is some hope on the horizon in the form of schemes such as Icelands Modern Media Initiative, which provides various legal guarantees and protections for freedom of information and expression online, and was in fact endorsed by WikiLeaks itself. However, in the vast majority of European jurisdictions, there is no similar level of protection of free expression online. Given the changes in terms of the new types of organisations such as WikiLeaks providing news and information to the public, and the fact that one of the major threats to free expression online in European jurisdictions comes from private entities as opposed to the public entities against which free expression protections were designed to be effective, then these jurisdictions should consider either explicitly enacting such a protection into their national laws, or formulating a scheme such as Iceland's. IV Public Service Broadcasters Public service broadcasting (PSB), the provision of content via television and radio by both public bodies and privately-owned companies with a remit of providing information, culture, education and entertainment to the whole of society, has been a prominent feature of the European media landscape. However, with the convergence of formerly distinct communications technologies i.e. telephony and broadcasting, and the increasing availability of channels for information, then the relevance of PSB in the digital age has been questioned. Nevertheless, PSBs themselves have been moving into the digital sphere, providing their audiences with new services using the new technologies available. Regulating the use of new media by PSBs The new media activities of PSBs in the EU have been subject to the state aid regime i.e. Art 107 TFEU; a 2009 Communication from the European Commission, updating a 2001 Communication
113Rebecca MacKinnon WikiLeaks, Amazon and the new threat to internet speech CNN 2 December 2010. Available at:
http://articles.cnn.com/2010-12youtube?_s=PM:OPINION 02/opinion/mackinnon.wikileaks.amazon_1_wikileaks-founder-julian-assange-lieberman-

on the same subject, clarified the position in light of the entry of PSBs into the digital environment, that there is a limited derogation from the state aid rules for PSBs. 114 It affirms that the Commission thinks that 'public service broadcasters should be able to use the opportunities offered by digitisation and the diversification of distribution platforms on a technology neutral basis, to the benefit of society', and that PSBs may use state aid 'to provide audiovisual services over new distribution platforms, catering for the general public as well as special interests, provided that they are addressing the same democratic, social and cultural needs of the society in question, and do not entail disproportionate effects on the market, which are not necessary for the fulfilment of the public service remit'. Latzer et al consider that in light of the Commission, PSBs and Member States will now be required to show a prior evaluation of new online services with a consideration of public value and market impact at the national level. 115 Prior to this clarification by means of the Commission, some Member States, namely Germany and the United Kingdom, adopted a public value test for their PSBs regarding their online services. There were many complaints made against Germany to the European Commission by rival commercial online content providers regarding its Internet activities, and in 2005 the Commission concluded that Germany's financing of its PSB was incompatible with the EC Treaty, and opened a major investigation. The result of this investigation was that the Commission considered that the new media activities of Germany's PSBs did not fulfil the conditions of a service of general economic interest. As a result of this, in 2009 Germany instituted a test for all new or modified digital activities of PSBs, which comprised three steps: an evaluation of whether the activities are covered by the public service remit and the democratic, social and cultural needs of society; an evaluation of whether the activities contribute in a qualitative way to 'editorial competition'; and a detailing of the financial impact of the activities. In 2007, a new regulatory scheme was created for the BBC, the United Kingdom's principal PSB, which created a new regulatory body (the BBC Trust), and the BBC's activities, including those online, were subjected to closer scrutiny, with closer investigations of proposals for new services and 'significant' changes to existing services. This also encompasses a 'public value' test, instituted by the last Royal Charter of the BBC, which consists of a public value assessment of the benefits for citizens and consumers of the proposals carried out by the BBC Trust, and a market impact assessment carried out by the communications regulator Ofcom. The BBC's online operations have a 'service licence' which requires that the BBC delivers one or more of the public purposes contained in the Royal Charter, and the content should comply with at least one of five public service characteristics (high quality, challenging, original, innovative and engaging). Furthermore, (although not an EU Member State) Switzerland has specific regulation governing the online activities of its PSB, SRG, by means of a charter which entered into force on 2008. Article 13 of this charter details what content is permissible, namely it must closely relate to specific broadcasts, allow self-promotion solely with the aim of audience bonding and the setting of external links on a non-commercial basis; furthermore, there is a ban on online advertising and sponsoring (with some limited exceptions e.g. on pages which are produced in partnership with non-profit organisations. Analysis Rather than bowing out of the media landscape with the technological changes, PSBs have adapted
114http://ec.europa.eu/competition/state_aid/legislation/broadcasting_communication_en.pdf 115 Latzer, Michael, Braendle, Andreas, Just, Natascha and Saurwein, Florian, Public-Service Broadcasting Online: Assessing Compliance with Regulatory Requirements (June 30, 2010). International Telecommunications Policy Review, Vol. 17, No. 2, 2010. Available at SSRN: http://ssrn.com/abstract=1837343

to the new environment with the provision of new services over the new medium. The main concern for them is proving that these services remain within their remit, and also conform to the rules on state aid. They will also need to counter claims of their behaviour being uncompetitive and making it more difficult for commercial entities to invest in online activities, although this argument may indeed be illusory, since as Brevini notes, while the BBC's spending on online activities between 2002 and 2006 increased by over 50%, total online advertising spending increased by over 1600% in the same period116 this suggests that the presence of the PSB in the UK at least did not limit at all the growth of the market. Close attention should thus be paid to the actual effects PSB are having on their respective online markets and whether their presence continues to serve their public service objectives.

116 Brevini, Benedetta Towards PSB 2.0? Applying the PSB ethos to online media in Europe: A comparative study of PSB's internet policies in Spain, Italy and Britain European Journal of Communication (2010) 25:348

4. REGULATION OF INFORMATION FLOW IN NEW MEDIA

In new media, particularly the Internet, there are various 'information intermediaries' between the producers and consumers of content at various levels of the service provision. This chapter will look at 'net neutrality' and the regulatory measures taken in Europe and Member States to govern ISPs' ability to manipulate traffic travelling through their networks. In addition, the pending competition investigation into Google for its dominant position on the search and advertising, and the implications of this investigation for regulatory action will be considered. Furthermore, the more overt free expression and privacy concerns generated by the behaviour of intermediaries will be examined, such as the use of these intermediaries by governments to implement policies of blocking, taking down and restricting access to certain information on the Internet. I Net neutrality: the regulation of ISPs One major regulatory issue involving information intermediaries has been that of net neutrality. Net neutrality is a principle proposed for user access to the Internet, which would prevent Internet Service Providers (ISPs) from discriminating between different kinds of Internet traffic, regardless of the amount of bandwidth the traffic takes up, and from restricting content, sites or platforms (at least not those which are legal). Prior to the development of deep packet inspection (DPI) technology, the Internet functioned by sending information across the network according to the 'best efforts' approach; however, with the development of this technology, it is now possible for ISPs to look into the content of the packets of data passing through their networks and act accordingly: for instance, slowing down certain kinds of data, speeding up other kinds of data, and even blocking some data entirely. With the use of DPI, it has been put forward that a principle of net neutrality is necessary in order to preserve the desirable status quo of how the Internet works. Indeed, arguments in favour of net neutrality include preserving the free and open Internet, securing competition on the Internet, avoiding a more profound digital divide, fostering new innovation, and guaranteeing free expression. Nevertheless, those who argue against a net neutrality principle posit that it is unnecessary, it will block further investment (and thus innovation), it will be inefficient, it will prevent more competition, and it will entail network congestion and thus an inferior quality of service (QoS) on the Internet. Although the net neutrality debate was born in the US, there has been increasing interest and corresponding regulatory activity in Europe, both at the transnational and domestic levels. The desirability of regulating ISPs vis-a-vis net neutrality There have been two main arguments advanced in favour of regulating ISPs by imposing some sort of net neutrality obligation upon them: the promotion of competition and innovation; and the promotion and protection of the right to free expression. Competition, innovation and investment As regards competition and innovation, there are concerns about competition on the Internet suffering in the absence of a guarantee of net neutrality, due to ISPs either favouring the content of their subsidiary (if there is vertical integration), or discriminating between different content providers e.g. in favour of a particular content provider if it pays the ISPs for faster access. This makes the assumption that there is economic dominance and/or oligopolistic behaviour in the

markets for Internet provision, and that the market would not itself provide the solution to this problem. Competition concerns have been more prominent in the US than Europe given the European broadband market is considered to be more competitive than the American one: the American regulatory approach has led to a duopoly of integrated broadband access providers, 117 whereas in Europe an approach has been taken which has led to more competitive wholesale and retail broadband markets and ownership of the local path not being a barrier to entry on the retail market. Nevertheless, even in the European context, Chirico, Van der Haar and Larouche have recognised competition issues in the absence of net neutrality regulation in Europe.118 They identify two places at which a broadband provider could exercise market power: by exerting control over the underlying infrastructure (wholesale broadband access provision); and by exerting control over content delivery or termination (wholesale content transmission to endusers). An exercise of market power in the former scenario is most likely to lead to concerns about discrimination between content providers (e.g. in favour of a subsidiary), while an exercise of market power in the latter scenario is most likely to lead to concerns about blocking content. Regarding innovation and investment, the issue is more speculative: a net neutrality principle has been claimed to be both beneficial and disadvantageous to innovation on the Internet. The arguments against a net neutrality principle from an innovation and investment perspective are that it would restrict this innovation and investment by not allowing ISPs to tap into revenue from e.g. content providers (CPs) that are willing to pay for the prioritisation of their content travelling across the ISPs' network to its customers. This additional revenue could be spent on improving the ISPs' infrastructure, and investing in new and innovative applications and content. From an economics approach, Njonge et al consider the investment incentives of ISPs under a net neutral and non-neutral regime using a game-theoretic model, and conclude that ISPs investments are greater in the non-neutral regime since it is easier for them to extract surplus through appropriate CP pricing.119 Furthermore, in their model the quality of CPs is enhanced through the increase in ISP quality, so the larger investments may lead to an increase as well in CPs profits, increasing the consumer surplus, and so social welfare overall is greater in the non-neutral regime. In addition, they find that in the non-neutral model consumers are likely to benefit from lower connection prices since ISPs will be extracting more revenue from CPs and from enhanced platform quality due to investments. They conclude that price regulation i.e. preventing ISPs from charging CPs for access to their customers could be an inappropriate policy for increasing value on the Internet because of a potential limiting of investment incentives for ISPs, especially smaller ones. However, Wu early on recognised the tension between the short- and long-term interests of ISPs and the public: the long-term interest should coincide, i.e. both parties should want a neutral platform that facilitates the emergence of the best applications; however, the short-term interest of ISPs would seem to entail them restricting access to certain applications, and therefore not providing a neutral platform.120 In his view, the Internet should remain neutral to ensure that competition on it between different application developers remains meritocratic, and facilitates the
117 Of which one is Comcast, which has already engaged in non-net neutral behaviour as detailed above. The other major provider is AT&T. 118Chirico, Filomena, Van der Haar, Ilse M. and Larouche, Pierre, Network Neutrality in the EU (September 2007). TILEC Discussion Paper No. 2007-030. Available at SSRN: http://ssrn.com/abstract=1018326 119 Njoroge, Paul, Ozdaglar, Asuman E., Stier-Moses, Nicolas E. and Weintraub, Gabriel Y., Investment in Two Sided Markets and the Net Neutrality Debate (July 16, 2010). Columbia Business School DRO (Decision, Risk and Operations) Working Paper No. 2010-05. Available at SSRN: http://ssrn.com/abstract=1641359 120Wu, T. (2003). Network Neutrality, Broadband Discrimination. Journal of Telecommunications and High Technology Law, Vol. 2, 141, 149 Available at SSRN: http://ssrn.com/abstract=388863

best applications being created and used. In addition, Chettiar and Holladay also advocate the maintenance of net neutrality.121 They see a change in the status quo which would allow ISPs to start charging content providers (CPs) for (priority) access to customers as entailing a transfer of wealth from CPs to ISPs, which could very well reduce incentives for CPs to produce content, potentially reducing the overall value of the Internet for users.They see allowing ISPs to charge CPs for access to their customers as an extremely inefficient economic tool to achieve additional investment in broadband infrastructure since most additional revenue gained by ISPs is more likely to be transferred to their shareholders than invested in expanding and improving the infrastructure. Instead, they posit an alternative strategy for ensuring adequate investment in the Internet: targeted government support for ISPs to improve infrastructure where necessary, and the enactment of net neutrality rules to protect CPs and ensure they are not faced with reduced incentives to invest in Internet content. In addition, they note the uncertainty involved with departing from the net neutral status quo to an untested price discrimination regime: the current situation has a track record of permitting an array of new technologies, products and services to develop, while it is hard to predict what kind of technologies will develop in a prioritisation market. Free expression Alongside the economic framing of the debate on net neutrality, there has also been discussion of the potential infringement of the right to freedom of expression and its constituent right of access to information as a result of ISPs acting in non-net neutral ways. Any infringement of this right would mainly be due to ISPs blocking certain information from reaching Internet users, or perhaps also forcing them to pay extra to access certain content or slowing down access to that content. In the European context, Chirico, Van der Haar and Larouche acknowledge end-users' and content providers' 'fundamental right to receive and impart information, enshrined inter alia in Art 10 ECHR', with the implication being that this could come into conflict with non-net neutral conduct from ISPs. However, Art 10 of the ECHR is an obligation primarily pertaining to contracting States, and is usually conceived of as a negative freedom, but it has been found to have some horizontal, positive effect,122 and in some national jurisdictions the rights of the ECHR have (limited) effect in proceedings between private parties.123 The Council of Europes Committee of Ministers recently issued a Declaration on network neutrality, in which it stated its commitment to the principle of net neutrality and acknowledged implications for freedom of expression of deviations from the principle. 124 Nevertheless, another side of this debate has also been the extent to which ISPs themselves possess the right to free expression, and so should not be subject to net neutrality rules. This has been conducted mostly in the US context, where free speech protection under the First Amendment has been conceptualised as a right also enjoyed by legal persons as well as physical persons (which differs from the traditional European conception of the right125). If ISPs are viewed to enjoy First Amendment speech rights, then the imposition of net neutrality rules could constitute infringements. However, Bramble considers that ISPs do not exercise meaningful editorial discretion over the content and applications transmitted by third parties over their networks while he believes they possess some free expression rights, a net neutrality rule which mandates
121 Chettiar, Inimai and Holladay, James Scott, Free to Invest: The Economic Benefits of Preserving Net Neutrality (September 22, 2010). Available at SSRN: http://ssrn.com/abstract=1681051 122Such as in the case of Khurshid Mustafa and Tarzibachi v Sweden. 123Such as in the United Kingdom, due to section 3 of Human Rights Act 1998. 124 Council of Europe Declaration of the Committee of Ministers on net neutrality 29 September 2010. Available at: https://wcd.coe.int/ViewDoc.jsp?id=1678287 (last accessed 25 October 2010). 125Although perhaps not the less-than-traditional conception that Sluijs advocates - Sluijs, Jasper P., From Competition to Freedom of Expression: Introducing Art. 10 ECHR in the European Network Neutrality Debate (September 15, 2011). TILEC Discussion Paper No. 2011-040. Available at SSRN: http://ssrn.com/abstract=1927814

non-discrimination between different types of information passing over the network does not affect these rights.126 Furthermore, Yemini has argued that given the 'multiple speaker environment' found on the Internet, and the ability of ISPs to block content and discriminate against Internet traffic, then there may indeed be some justification for subjecting ISPs to First Amendment duties not to restrict free expression.127 Regulatory measures concerning ISPs European Union In the European Union, ISPs have already been subject to general telecommunications regulation. Some pertinent provisions include Art 5 of the EU's 2002 Access Directive,128 which empowers national regulatory authorities (NRAs) to encourage and, where appropriate, ensure adequate access and interconnection, and interoperability of services taking into account what would benefit end-users. This provision goes some way to promoting and ensuring net neutrality, but is not a guarantee of it, and relies on action by the NRAs rather than at a centralised and harmonised European level. The Telecoms Package (the new telecommunications framework in the EU, also known as the 'Revised Framework') which was passed in 2009, and must have be implemented by Member States by May 2011, has been considered by the European Commission to provide consumers with 'better information ensuring they understand what services they subscribe to and, in particular, what they can and cannot do with those communications services', and to protect citizens' rights relating to Internet access by a new Internet freedom provision.129 It also considers the Package to provide 'new guarantees for an open and more neutral net' through ensuring more competitive retail broadband markets, and empowering national telecoms authorities to set minimum quality levels for network transmission services. As one of the prerequisites to the conclusion of the Telecoms Package, the Commission ran a consultation on 'The open internet and net neutrality in Europe', which resulted in a Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions in April 2011.130 The Communication emphasises the provisions of European law and regulation which already operate in this area, such as competition law, the amended telecoms framework including new transparency requirements regarding service quality and the possibility for consumers to switch operators, the possibility of national regulators setting minimum QoS requirements for network transmission, protections for the processing of personal data, and the obligation on Member States to comply with the Charter for Fundamental Rights when implementing EU law, including the revised telecoms framework. The Commission pursues a waitand-see approach as a result of this Communication: it will monitor what happens in this period after the revised Telecoms Package being transposed, and will then see whether it feels it expedient to publish further guidance on net neutrality.
126 Bramble, Nicholas, Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection (2010). Michigan Telecommunications and Technology Law Review, Vol. 17, No. 67, 2010. Available at SSRN: http://ssrn.com/abstract=1742914 127 Yemini, Moran Mandated Network Neutrality and the First Amendment: Lessons from Turner and a New Approach. Virginia Journal of Law and Technology, 2008. Available at SSRN: http://ssrn.com/abstract=984271 128 Access Directive 2002/19/EC. Available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:32002L0019:EN:NOT (last accessed 28 October 2010). 129European Commission press release Agreement on EU Telecoms Reform paves way for stronger consumer rights, an open internet, a single European telecoms market and high-speed internet connections for all citizens 5 November 2009. Available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491 130http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0222:EN:NOT

The European Data Protection Supervisor (EDPS), in response to the Commission's Communication, delivered its own Opinion on these matters.131 It stated that the use of DPI by ISPs to inspect the content of communications interferes with the right to the confidentiality of communications, to an increasing or decreasing extent depending on the technique used and the facts of the situation. However, in principle the EDPS considers that the existing privacy and data protection framework, if properly interpreted, applied and enforced, is appropriate to guarantee the right to confidentiality. Nevertheless, it counsels close monitoring of the situation, terming 'highly problematic' from a privacy and data protection perspective the situation in which 'ISPs engage on a routine basis in traffic management policies offering subscriptions based on filtering access to content and applications', and advocating legislative measures to address this. Any future legislative measures should give users a 'real choice' especially through forcing ISPs to offer non-monitored Internet connections. In October 2011 the Industry Committee of the European Parliament unanimously adopted a resolution on net neutrality, in which it voices its support for the preservation of an open and neutral Internet, and requests that the Commission does indeed assess the need for additional guidance on net neutrality.132 National jurisdictions in Europe Aside from activity at the supranational level, various national jurisdictions have also taken a regulatory interest in net neutrality. The Netherlands leads the group, becoming in June 2011 the first country in Europe to mandate a net neutrality principle in the form of a law which prevents ISPs from interfering with applications and services on the Internet, except if necessary, and what is necessary has been narrowly defined as when there is congestion, preserving the integrity and security of the network, service or terminal of the user, restricting the transmission of unsolicited communication to the user when the user has given consent for the ISP to do this, and to give effect to a legislative provision or court order. 133 After the Netherlands, France has been the most active on the subject of net neutrality. In September 2010, the communications regulator ARCEP published its ten proposals on net neutrality.134 According to the proposals, ISPs which offer 'Internet access' should offer users to possibility to send and receive the content of their choice, the possibility to use services or applications of their choice, the possibility to connect the equipment and use the programmes of their choice (provided these do not harm the network), and there should be a sufficient and transparent quality of service. Also, the general rule should be non-differentiating of the methods of treatment of each individual data flow by the type of content, service, application, terminal or by the IP address of the sender of the receiver, with any deviations from this to be limited deviations which are too significant are forbidden from being termed by the ISP an offer of 'Internet access'. These too-big deviations are to be termed 'managed services', which ISPs are permitted to offer so long as they do not degrade the quality of Internet access below a sufficient level. ISPs must also be transparent with users about the services and applications accessible via the Internet connection, their quality of service and any limitations and traffic management practices. Furthermore, ISPs
131The Opinion is available at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-1007_Net_neutrality_EN.pdf 132The text of the resolution is available here: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/itre/dv/08092011_res_net_neutrality_/08092011_re s_net_neutrality_en.pdf 133An unofficial translation of the law into English is available here: https://www.bof.nl/2011/06/15/net-neutrality-inthe-netherlands-state-of-play/ 134Les Actes de lARCEP Neutralite de linternet et des reseaux: propositions et orientations September 2010. The document is available in French at: http://www.arcep.fr/uploads/tx_gspublication/net-neutralite-orientationssept2010.pdf. All translations from this report into English are authors own (A.D.).

which give online service providers Internet access must do so in an objective and nondiscriminatory fashion, allowing all reasonable interconnection requests aimed at making the OSP's services or applications accessible to Internet users. As regards other Member States, the Swedish regulator PTS published a report entitled Open networks and services in November 2009,135 which touched on the subject of net neutrality. Although it did not introduce any regulation on this subject, it acknowledged its role as an NRA in light of the adoption of the EU Telecoms Package, and stated that it would look into the extent to which traffic prioritisation tools may be used when there is a lack of network capacity rather than the network operators expanding capacity or building separate networks, and also considered that it should review its general advice about the information requirements for service quality, since this did not at that time include information about bandwidth, traffic prioritisation or the blocking of certain traffic. In the United Kingdom, the communications regulator Ofcom conducted a public consultation on net neutrality in 2010136 Ofcom did not propose to take any further regulatory measures as regards net neutrality at the present time, instead relying on the operation of existing competition law to deal with discriminatory practices by firms with 'substantial market power' which it does see as causing concern, and which should be the subject of 'close scrutiny'. However, it does not see a strong rationale for preventing ex ante all forms of traffic management. On the topic of consumer transparency as regards traffic management, it placed this as the 'main focus of intervention in the short term'. On 'questions of fundamental rights and industrial and public service policies' it viewed that these are outside of its competences and indeed matters for the British government. In Belgium there is a proposal for a law concerning net neutrality, which would provide that all Internet traffic would be treated equally, with a limited exception for heavy-bandwidth traffic from peer-to-peer programmes, video services or botnets. IPTV services are also excluded from the proposal.137 The proposal, if success, would be adopted in 2012. In Norway, which is not a member of the European Union, the communications regulator NPT issued non-binding guidelines on net neutrality in February 2009. 138 They provide that Internet users are entitled to an Internet connection with a predefined capacity and quality, which allows them to send and receive content of their choice, use services and run applications of their choice, and connect hardware and use software of their choice which do not harm the network, and is free from discrimination with regard to type of application, service or content based on the sender or receiver's address. Comparison with non-European jurisdictions In the US, where net neutrality has been the mostly fiercely debated, the Federal Communications Commission in December 2010 issued a report and rules on preserving the open Internet. The are rules incumbent on broadband ISPs and based on four principles: transparency, no blocking, no unreasonable discrimination, and reasonable network management. The rules will come into force in November 2011, although already broadband provider Verizon Communications is challenging the authority of the FCC to make these rules by filing an appeal with the US Court of Appeal in
135 PTS Report Open networks and services 30 November 2009. Available in English at: http://www.pts.se/engb/Documents/Reports/Internet/2009/Open-Networks-and-Services---PTS-ER-200932/ (last accessed 28 October 2010). 136 The consultation document and responses are available at: http://stakeholders.ofcom.org.uk/consultations/netneutrality/ 137http://www.theregister.co.uk/2011/09/13/belgium_headed_for_net_neutrality/ 138 Available at: http://www.guarder.net/eurodig/2010/Norway%20-%20Principles.pdf

Washington.139 Canada also has regulation on net neutrality, with its communications regulator the CRTC issuing a binding determination on Internet traffic in October 2009, stating that ISPs must provide information to customers about their traffic management practices, they must respect customers' privacy in not using for other purposes personal information collected for the purposes of traffic management and not to disclose this information, and the specific practice of blocking the delivery of Internet content is not to be implemented without prior approval from the CRTC, which would only be given in 'exceptional circumstances'. 140 In June 2010 Chile became the first country in the world to mandate net neutrality by adopting Boletn (Bulletin) 4915,141 a major set of amendments, to the Ley General de Telecommunicaciones (General Telecommunications Law). This contains five obligations incumbent on ISPs: they must not interfere with, discriminate against or slow down in any way content, applications or services (unless these are measures to ensure the privacy of users, protection against viruses and the security of the network); they must provide parental control services; they must provide their customers with information about the service supplied in the contract; they must guarantee the privacy of users, protection against viruses and the security of the network; and they must guarantee access to all types of content, services and applications available on the network and offer a service that does not distinguish between content, applications or services based on their original source or provider. Analysis of measures taken so far Regarding net neutrality and competition, the current status quo is probably sufficient in terms of the protections offered by general competition law and the Telecoms Package, as well as the aforementioned more competitive market that is found in Europe as compared to the US. Nevertheless, some national jurisdictions i.e. France and the Netherlands have gone beyond this and adopted specific regulation on net neutrality which clarifies what is acceptable behaviour from ISPs, adopting a particular view of what competitive broadband markets should be like, and how players should behave in them. The users' rights perspective (as being stakeholder beyond mere consumers) is taken account of in some regulation, such as the guarantees of access to content, services, programmes etc for users (especially in the Dutch and French regulation) but this still remains a more marginalised issues, and there remains a glaring regulatory lacuna in the absence of the effective protection of human rights, particularly free expression vis-a-vis infringement by private parties such as ISPs. A postscript on privacy Users' privacy is an issue raised indirectly in the context of the net neutrality debate since the use of DPI technology allows ISPs to monitor data about users' behaviour on the Internet, which could include sensitive data. The concern about privacy has been recognised by the CRTC in Canada and the Chilean law, while the Council of Europe's Committee of Ministers also acknowledged the privacy implications of a deviation from net neutrality in its Declaration mentioned above. There has already been a major scenario involving privacy and DPI in the form of the Phorm case in
139http://www.theregister.co.uk/2011/10/03/isps_unhappy_with_fcc_regulations/ 140 CRTC Telecom Regulatory Policy 2009-657 Review of the Internet traffic management practices of Internet service providers 21 October 2009, Available at: http://www.crtc.gc.ca/eng/archive/2009/2009-657.htm (last accessed 28 October 2010). 141 The text of Bulletin 4915 is available in Spanish at: http://www.camara.cl/prensa/noticias_detalle.aspx? prmid=38191. The translation into English here is the author's own.

the United Kingdom. In 2007, BT trialled advertising software from American firm Phorm on tens of thousands of BT customers without their knowledge or consent in order to target advertising to these users based on their web-browsing habits.142 The following year the companies conducted another trial in a more transparent fashion: 'sensitive' websites were not used to form user profiles, customers were to opt-in to the trial, and conducted an analysis of the impact of the trial on users' privacy. In response to the BT Phorm trials, the European Commission opened an infringement proceeding against the UK regarding the use of this software, after having received complaints from British Internet users, alleging the UK had not complied with European rules on the confidentiality of communications.143 In September 2010, the Commission referred the case to the European Court of Justice since no changes to UK law to implement the EU rules fully were made as a result of the investigation.144 However, in May 2011 the Commission decided to suspend the Court reference due to the British Government submitting Regulations to the British Parliament which would amend the Regulation of Investigatory Powers Act 2000 to remove references to implied consent and would establish a new sanction against unintentional interception which would be administered by the Interception of Communications Commissioner who would also hear complaints about unlawful interception.145 II The regulation of search engines Online search engines can be considered as 'information intermediaries' inasmuch as they are neither producers nor creators of information online; instead they act as something akin to directories, sorting webpages into a system that can easily be accessed and made sense of by the user. Search engines work by indexing websites using a 'crawler' to trawl through the information available on the Internet, so that when a user types in search terms, it can connect them to this index, in a way which is meaningful and intelligent i.e. the user can get pages which are relevant to the search terms entered. For instance, in order to determine the relevance of a webpage to the search terms entered, Google uses links to that website as its basis for such relevance: the more links to that sites, the higher up the rankings that site will be on the results page. The major search engines, such as Google, Yahoo and Microsoft Bing, are commercial entities, which make money out of searches, usually due to other companies paying for advertising space in the 'results' page of the search process. Commercial search and advertising has been conceptualised as a 'two-sided market', in which users make searches for free through search engines, while the search engines are funded by revenue from advertising. Google is the most prominent of the search engines in Europe: it has a dominant position in the overall European market for online search, based on either proportion of searches that are conducted through Google (for no cost to users), or its proportional share of advertising revenue (which is where Google gets its funds).146 Nevertheless, Europe differs from e.g. North America in
142Chris Williams BT's 'illegal' Phorm trial profiled tens of thousands, The Register (14 April 2008), http://www.theregister.co.uk/2008/04/14/bt_phorm_2007/ (last visited 3 June 2011). 143European Commission press release Telecoms: Commission launches case against UK over privacy and personal data protection (14 April 2009), http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/570 (last visited 3 June 2011). 144European Commission press release Digital Agenda: Commission refers UK to Court over privacy and personal data protection (30 September 2010), http://europa.eu/rapid/pressReleasesAction.do? reference=IP/10/1215&format=HTML&aged=0&language=EN&guiLanguage=en (last visited 3 June 2011). 145EC Suspends Action Against the UK Government over BT/Phorm 2 August 2011 NoDPI. Available at: https://nodpi.org/2011/08/02/ec-suspends-action-against-the-uk-government-over-btphorm/ 146There are various different methods of calculating shares of the search engine market in Europe, which are subject to various criticisms, but Google seems to come out in all of them as possessing a dominant position in this market. The most up-to-date data the author could find at the time of writing on search engine market share in Europe is this

its linguistic plurality: there are 23 official languages of the EU, not to mention the many more languages spoken in other European countries which are not Member States. This has an effect on national markets in Europe: while the primarily anglophone/Latin alphabet-based Google is dominant in the European market overall, in some national markets this is not the case, such as Russia where Yandex holds the dominant market share instead,147 and until recently in the Czech Republic, in which Seznam.cz had the dominant market share until early 2011, with reports that Google had overtaken it only then, although these have been disputed by Seznam itself. 148 Nevertheless, the market for search in Europe overall appears less competitive than the United States, where Microsoft's Bing search engine and Yahoo's search engine (which is also powered by Bing) has almost a 29% share according to the latest reports at the time of writing, and continues to challenge that of Google.149 Search and control over the Internet Due to their role in facilitating 'meaningful' access to information on the Internet by connecting users' search terms with the most relevant websites, search engines can constitute a point of control on the Internet. Indeed, they have already been identified by Elkin-Koren and Salzberger as being 'the new virtual gatekeepers of Cyberspace' since 'they can effectively control access to information'.150 How search engines present the information on the Internet can have economic and social implications. Elkin-Koren and Salzberger acknowledge that 'search engines can play a key role in structuring the online market for goods and services by granting prominence to some brands while avoiding others... [the search] results can determine which products and services are in fact available to users, and users would make their choices from this selection'. 151 In addition, aside from this economic element of search engine functioning, Elkin-Koren and Salzberger argue that 'search engines can affect the political, social and cultural agendas and the way discourse, deliberation and collective action are shaped, exerting real influence over public decision-making' due to the information that they provide and the way they do it, 'constructing meaning and shaping choices'. Law and regulation The function and operation of search engines collectively, and Google in particular as the largest search engine in Europe, have given rise to concerns over their power over the Internet as a whole, and in particular the flow of information. There is no specific regulatory regime which deals with search engines. So far, they have been governed by the general legal regimes of the jurisdictions in which they are active. Google has been to search engine most subjected to litigation, which so far in Europe has involved claims of
blogpost: Chandler Nguyen Digital Marketing Blog Search Engine Market share by country Mar 2011 13 March 2011. Available at: http://www.chandlernguyen.com/2011/03/search-engine-market-share-by-country-mar2011.html. The statistics website StatCounter also provides data from September 2010 to September 2011 for the top five search engines in Europe, which again shows the overall dominance of Google: http://gs.statcounter.com/#search_engine-eu-monthly-201009-201109 147Van der Beld, B Alternatives to Google in Europe Search Engine Land 14 September 2010. Available at: http://searchengineland.com/alternatives-to-google-in-europe-50425 148Van der Beld, B Yandex & Seznam: Local Powers That Be In Europe Search Engine Land 1 February 2011. Available at: http://searchengineland.com/yandex-seznam-local-powers-that-be-in-europe-62869 149Jalmerot, M. Google Lose Market Share in U.S. to Bing Intermediate SEO 9 September 2011. Available at: http://www.seospecialist.co.uk/google-lose-market-share-in-usa-to-bing/ 150Elkin-Koren & Salzberger Law, economics and cyberspace: the effects of Cyberspace on the economic analysis of law p71 151Ibid p72

intellectual property violations by Google and allegations of it abusing its dominant position and thus acting anticompetitively. The major case against Google on the ground of intellectual property violation was the decision of the European Court of Justice in Google France v Louis Vuitton,152 in which various French companies claimed that Google was violating their trademarks through the use of its AdWords service, which allows companies to pay for advertising space on the results page once a user has done a Google search when the relevant keyword(s) are entered as search terms. Their advert is displayed in a prominent banner beside the 'natural results' (for which the owners of the websites do not pay, and which are placed in decreasing order of relevance, as defined by Google's algorithm). The companies complained about the fact that when their company name was entered as search terms, the 'sponsored links' displayed advertisements for sites offering imitation versions of the company's products (in the first case), and links to the sites of competitors (in the second case) and thereby it was argued that the fact that Google permitted this was a violation by Google of their trademarks. The ECJ decided that this did not constitute a violation of these companies' trademarks by Google, since Google itself as a third party did not 'use' the trademarks in the course of its trade within the meaning of Article 5(1) of Directive 89/104 or of Article 9(1)(a) and (b) of Regulation No 40/94. In addition, the ECJ held that as regards Article 14 of the E-Commerce Directive (2000/31) on the liability of Google for hosting information from advertisers that may be unlawful (i.e. in this case, infringing trademark law), Google's Adwords fell within the definition of 'information society service' and that Google itself constituted an 'intermediary service provider' whose activity was 'of a mere technical, automatic and passive nature', with the fact that advertisers paid Google for their ads to be displayed in a particular part of the screen and in a particular order did not deprive Google from the exemption from liability contained in this Article since it did not have knowledge of, or control over, the data entered into its system by advertisers. Only if Google has obtained knowledge of the unlawful activity of the advertiser's data and/or its activities, and has failed to act promptly to remove or disable access to this data, then can it be liable. It would seem that the companies offering imitation versions of Louis Vuitton products, and the competitors of the other companies involved in these cases may well be considered to be 'using' the trademarks without the consent of their owners, and so violating the provisions above, but Google itself could not be considered to be doing so, and cannot be held liable unless it has knowledge of the unlawful material and does not take it down. The US has also grappled with the issue of whether Adwords is infringing trademarks. In Google v American Blind & Wallpaper Factory,153 the District Court of the North District of California held that Google's activities did constitute a 'use' of the trademarks under the Lanham Act. Furthermore, in Rescuecomm v Google,154 the Court of Appeals for the Second Circuit held that Google's use of the Rescuecom trademark did constitute a 'use in commerce' under the Lanham Act. However, the particular use in question here was Google's Keyword Suggestions Tool recommending additional keywords, in this case 'Rescuecom', to advertisers (especially in this case Rescuecom's competitors) to purchase, such that when a user did a search for 'Rescuecom', the ads of its competitors would be displayed alongside it in the sponsored links banner. However, Google has since disallowed the use of trademarks in the text of a sponsored link (with certain exceptions) and so this move placated Rescuecom.155 Despite this litigation in the US, there have been no cases in which it has been conclusively found that Google is violating trademark law in the situation at hand. Indeed, last year an action from language learning company Rosetta Stone alleging that its trademark was infringed by Adwords was thrown out by a District Court in Virginia (although it is now being appealed), and
152Joined Cases C-236/08 to C-238/08 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:62008J0236:EN:HTML 153No. 03-cv-05340 JF (RS) (N.D. Cal. Apr. 18, 2007) 154562 F.3d 123 (2nd Cir. 2009) 155http://www.rescuecom.com/a-case-of-david-versus-googleiath.html

also at the time of writing Google has just had a class action against it dismissed (FPX v Google). Competition law As regards competition law, there is currently a highly significant competition investigation into Google being carried out by the European Commission: Google is alleged to have abused its dominant position in online search, in violation of Art 102 TFEU.156 The investigation was opened in the wake of complaints from other, competing search service providers that Google was treating them unfavourably in Googles own search results, both the unpaid ones and the sponsored search results or ads (which are displayed in prominent banners at the top and right hand side of the search results page, and for which companies pay Google), and that Google was giving preferential treatment in search result placing to its own services. At the time of writing, the Commissions investigation is ongoing. From what the Commission says, there appears to be four parts to its investigation, based on the complaints it received. Firstly, Google is alleged to have engaged in anticompetitive behaviour by lowering the rank of the unpaid search results of services which competed with Google (in particular, those providing users with specific online content such as price comparisons, which are also known as vertical search services), and to have accorded preferential placement to the results of its own versions of these services in order to foreclose its competitors. Secondly, Google is alleged to have lowered the Quality Score for the sponsored links of such competing vertical search engines (the Quality Score influences the likelihood of an ad to be displayed by Google and the ranking of that ad in the search results, and is a factor in determining the price paid by advertisers to Google). Thirdly, it is alleged that Google imposed exclusivity obligations on its advertising partners which prevented them from placing certain types of competing adverts on their own websites with the aim of foreclosing competing search engines (it is also alleged that Google imposed this obligation on computer and software vendors). Fourthly, there are allegations that Google imposed restrictions on the use of online advertising campaign data by competing advertising platforms (i.e. other virtual marketplaces offering advertising space on the Internet). The case is ongoing at the time of writing, and indeed in September 2011, Joaquin Almunia, the Competition Commissioner, stated that the Commission is still trying to determine whether Google is in fact abusing its dominant position. 157 The US is also investigating Google's behaviour. Most notably, the Federal Trade Commission (FTC) opened an antitrust inquiry into Google's search and advertising activities in June 2011. The Attorney General of Texas opened an investigation in 2010, which is still ongoing. An antitrust complaint against Google in Ohio was dismissed in September for not showing proof of harm to competition as a whole from Google's conduct. 158 Analysis of measures taken so far Regarding the law and regulation pertaining to search engines outlined above, various points can be made.
156 European Commission press release Antitrust: Commission probes allegations of antitrust violations by Google 30 November 2010. Available at: http://europa.eu/rapid/pressReleasesAction.do? reference=IP/10/1624&format=HTML&aged=0&language=EN&guiLanguage=en 157F. Y. Chee EU regulators are still undecided whether Google dominates in Internet search and if it has abused rivals in breach of competition rules, the EU's antitrust chief said on Friday Reuters 16 September 2011. Available at: http://www.reuters.com/article/2011/09/16/us-eu-google-idUSTRE78F14K20110916 158Google Inc. v. myTriggers.com Inc. et al, no. 09CVH10-14836

Firstly, as regards the issue of search engines infringing trademarks through the use of advertising linked to keywords, the ruling by the ECJ in the Louis Vuitton case seems to have created a presumption in favour of this practice being legitimate; however, Google can still be held liable if it did have knowledge of data which infringed trademarks being stored and displayed, or if it can be shown to have control over the data. This will depend on the facts of the case at hand. Nevertheless, in this case, it was accepted that Google was an automated system, and so was not found liable. However, in the competition investigation into Google by the European Commission, the examples of alleged anticompetitive conduct from Google suggest that it does have an active role in the display of results on its results page, if it has indeed lowered the rank of the websites of its competitors. While the unpaid search results are a different part of Google's functioning from Adwords, this would still point to Google not being an entirely automated service. Google is notoriously secretive about its inner working, refusing for instance to make public its search algorithm, so without legally mandated disclosure orders on Google, it is impossible to know the extent to which Google is automated, or whether some kind of 'editorial control' is exercised over its search and advertising functions. As regards the substance of the competition investigation into Google by the Commission, it seems clear that if certain of the claims outlined above are proved to be true, then this would constitute anticompetitive behaviour, such as the exclusivity obligations Google is claimed to have placed on its advertising partner (so long as an adverse affect on competition coming from this can be shown). However, for the 'core' claims around Google lowering the ranking of the unpaid search results of competitors and lowering the Quality Score for the sponsored links of competitors, it is less clear cut as to whether Google is actually acting anticompetitively (which seems to be alluded to in the most recent communication from the Commission on the case). It seems to be true that Google has a dominant position in the markets for online search and advertising in Europe; yet whether it is actually abusing this position is another matter entirely. Manne has argued against increased regulation of Google, positing that it is not acting anticompetitively vis-a-vis other search providers, and especially vertical search engines. 159 Aside from disputing the narrow definition of the market as that for online search and advertising, he argues that any Internet user can access any site by typing in its URL into the web browser, and in any event, the results and advertisements from Google's competitors are still shown in Google's results page (and so Google's conduct could not be characterised as a 'refusal to deal'). If it is proved that Google did favour its own results above those of its competitors, then perhaps this could constitute anticompetitive behaviour, however if there is no overall effect on competition, which Google could argue since it is still displaying the results from competitors and not blocking them entirely, then even this practice may not be anticompetitive. Essentially, what Google's competitors are aggrieved about is not being placed further up search ranking; yet Google may well have no obligation to do this. The 'real' issue in all of this may not be so much whether Google is behaving anticompetitively, but rather the extent to which in practice Google is a portal through which Internet users access information, sometimes exclusively, and the fact that how it gathers, stores and displays that information is done in a fairly opaque fashion. Google may well be found not to be behaving anticompetitively in the Commission investigation in the end, but that may still leave Internet users none the wiser as to how Google operates, the extent to which it exercises 'editorial control' over the results it displays, the extent to which it blocks or omits to list websites even if they are 'relevant' to
159Manne, Geoffrey A., The Problem of Search Engines as Essential Facilities: An Economic & Legal Assessment (January 17, 2011). THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET, p. 419, Berin Szoka, Adam Marcus, eds., TechFreedom, January 2011; Lewis & Clark Law School Legal Studies Research Paper No. 2011-10. Available at SSRN: http://ssrn.com/abstract=1747289

the search terms entered for political/social/moral reasons, the extent to which it stores information about searches by users, etc. Indeed, Pasquale identifies the limits of competition law (at least in the US) in governing 'dominant' search engines, such as the fact the economics-based, consumer welfare-oriented competition analysis cannot deal properly with inter alia privacy concerns. Given these limits, he argues that search engines should instead be thought of as an 'essential cultural and political facility' and regulated (or not) accordingly, using tools beyond competition law. 160 Alongside measures he has previously advocated regarding the increased regulation of search engines (such as protection for users' privacy and increased transparency over how search results are ordered), 161 Pasquale now also suggests a publicly-funded search engine as an alternative to those already in operation, so as to avoid problems with monitoring and accountability that private search engines pose. The Council of Europe has also turned its attention to search engines, and is in the process of preparing a recommendation from the Committee of Ministers to Member States concerning the protection and promotion of respect for human rights with regard to search engines. The recommendation is currently in draft form,162 with the Committee at the time of writing considering responses from the public consultation it conducted on the guidelines. The recommendation recognises the potential challenges from search engines to the right of freedom of expression (Art 10 of the ECHR) and the right to a private life (Art 8), which may come from the design of algorithms, the blocking and discrimination of content, concentration in the market and a lack of transparency about how results are ranked and about what the search engines are doing with the data they collect. The tentative recommendation for member states is that they develop, in cooperation with the private sector and civil society, coherent strategies to protect fundamental rights and freedoms regarding the operation of search engines, particularly in relation to transparency over how the search engines provide information and collect personal information, adherence to the principle of due process when results are removed from search indexes for whatever reason and before individuals' search records are disclosed to public or private entities. It encourages search engines to set up co- or self-regulatory mechanisms to ensure adherence to human rights standards, and mentions the Global Network Initiative as an example. III The co-option of control: intermediaries and governments Internet intermediaries, especially ISPs, due to their strategic position as gatekeepers of information online have been used by European governments to implement policies of blocking and filtering certain information otherwise available online. Both practices work by using software on the servers of the intermediaries which blocks or filters the specific content before it reaches the Internet user. These practices of blocking and filtering have been directed at various different types of content, some of which is illegal and criminal (e.g. child pornography, matters relating to terrorism), some of which might be illegal (e.g. alleged copyright violations) and some of which is completely legal (although may be thought of as 'immoral' e.g. adult pornography). The use of blocking and filtering has raised issues of free expression, privacy and due process.
160Pasquale, Frank A., Dominant Search Engines: An Essential Cultural & Political Facility (January 15, 2011). THE NEXT DIGITAL DECADE, ESSAYS ON THE FUTURE OF THE INTERNET, Chapter 7, p. 401, Berin Szoka, Adam Marcus, eds., TechFreedom, Washington, D.C., 2010; Seton Hall Public Law Research Paper No. 2010-27. Available at SSRN: http://ssrn.com/abstract=1762241 161Pasquale, Frank A., Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries (October 1, 2010). Available at SSRN: http://ssrn.com/abstract=1686043 162The draft recommendation is available here: http://www.coe.int/t/dghl/standardsetting/media/MC-NM/MC-NM %282011%2914_en%20HR%20and%20search%20engines.asp#TopOfPage

Regulation of filtering and blocking In 2008, the Council of Europe's Committee of Ministers issued a non-binding recommendation to member states on the freedom of expression and information and Internet filters, in which it proposed guidelines for governing this area.163 The guidelines encompassed informing users about when filters are being used, and giving users the opportunity to challenge the blocking or filtering of content and seek clarifications and remedies. The recommendation also recognises the desirability of using filters for when children and young people use the Internet, so long as it is proportionate. General country-wide blocking or filtering measures should only be introduced if the filters concern specific and clearly identifiable content, a competent national authority has ruled that it is illegal, and the decision can be reviewed by an independent and impartial tribunal or regulator. As regards privacy and data protection, the recommendation urges member states to ensure that personal data logged, recorded and processed via filters is used only for legitimate and noncommercial purposes. The recommendation also calls for cooperation from the private sector, and civil society. The ECJ has also been dealing with the issue of the legality of filtering in the Scarlet v Sabam case mentioned in Chapter 2: at the time of writing, only the Advocate General's opinion has been released.164 The case comes originally from Belgium, and concerned a dispute between Sabam, the Belgian collecting society, and Scarlet, an ISP, over allegations that Scarlet was liable for copyright infringement due to use of its services for the unauthorised sharing of music files for which Sabam held the copyright, and Sabam also sought an order requiring Scarlet to bring these infringements to an end by blocking or otherwise making it impossible for its customers to send files containing music using peer-to-peer software without the permission of the holders of the copyright. Advocate General Cruz Villalon considers that a filtering system such as that which Sabam wants to be implemented would be a restriction on the right to the respect for the privacy of communications, the right to protection of personal data and the freedom of information (all of which are protected by the Charter of Fundamental Rights), and such a restriction would only be permissible if it was adopted on a national legal basis which was accessible, clear and predictable, which in the case at hand did not happen since the obligation for ISPs to instal such a filtering and blocking system was not laid down expressly and in clear, precise and predictable terms in the Belgian legal provision at issue. There is as yet no harmonised rules or obligations emanating from the EU regarding the filtering or blocking of content. At the national level, all European countries have implemented some kind of regime. In the United Kingdom, for instance, ISPs use the 'Cleenfeed' filtering system, which was firstly implemented by BT (the UK's largest Internet provider) to target content alleged containing images of child sexual abuse (as identified by the Internet Watch Foundation). Other UK ISPs were told to implement a similar system by 2007 voluntarily, or if they did not do so, they would be forced to do so by law. Once a site has been deemed inappropriate, it is blocked by the ISP, and when a user attempts to access it, they receive an error message. If the site is hosted within the UK, then the ISP is required to take down the material. In 2011, as also mentioned above in Chapter 2, the Motion Picture Association managed to obtain a court order which forces BT to use Cleenfeed to block access to the Newzbin 2 site, which provides links to copyrighted content. 165

5.

CONCLUSION

163https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec %282008%296&Language=lanEnglish&Ver=original&BackColorInternet=9999CC&BackColorIntranet=FFBB55& BackColorLogged=FFAC75 164The Opinion is available here in various languages (but not inter alia English): http://curia.europa.eu/jurisp/cgibin/form.pl?lang=EN&Submit=rechercher&numaff=C-70/10 165http://www.bbc.co.uk/news/technology-13927335

One conclusion that can be drawn from this report is that the view of the Internet as being a Wild West Frontier, un-policed, unregulated and unregulable, does not appear to apply to the Internet of 2011. Increasingly, ISPs are being used to regulate conduct on the Internet, whether this relates to the prevention of alleged criminal activity, through to the regulation of activity that is not necessarily criminal in nature. Digital copyright policy is a good example of how ISPs are no longer acting as mere conduits of data, and instead are fulfilling (and indeed, are expected to fulfill) the role of active gatekeepers, restricting access to materials which infringe copyright, by blocking access through IP redirection, or through controls placed on users themselves. Concerns regarding privacy appear to fall to the wayside, indicating that (in the field of intellectual property at least), the economic rights of corporate rightholders are granted preferential treatment over the civil rights of individuals. Whereas in Europe, cases such as Promusicae appear to show that the Courts at least are likely to assess the balance on a case-by-case basis, legislative developments in Member States such as the UK and France, combined with the proposals for a Criminal Enforcement Directive, appear to suggest that legislative actors are not satisfied with this response. Furthermore, as can be seen from the net neutrality debate, ISPs are also using their position as gatekeepers to their own advantage, by blocking and discriminating against traffic flowing through their networks. The strong focus on the economic rights of certain actors is also evident in the growing tendency to provide protection to copyright holders at the expense of individuals. Whether this comes in the form of takedown requests which prevent the use of creative works in a way which may (at least in the US) be considered a fair use of that work, and the difficulties felt by individuals in having material reinstated after a bad faith take-down, as in the Lenz case, suggests that there is a significant imbalance in protection in the digital environment. The fact that legislation appears not only to limit the restrictions and exceptions to copyright, but allows those exceptions to be contractually waivable is somewhat disturbing, and further indicative of an imbalance in rights in the digital environment. As the EU currently lacks an effective fair use doctrine, and has a set of exceptions to copyright which is intended to be narrow and exhaustive, also puts European Internet users at a comparable disadvantage against corporate interests in comparison to the US (although, the position of users in the US is in no way in balance). It is also interesting to note that despite the amount of legislation being developed in this area, the EU is still struggling to remove barriers to trade and commerce in digital media. Territorial restrictions on the basis of copyright and copyright licensing continue to persist, despite the best intentions of European actors. It is worth noting that the willingness of corporate rightholders to support a process appears to be a determinant factor in the passing of intellectual property-related legislation where it appears possible to pass legislation which seeks to limit exceptions to copyright, or harmonise enforcement mechanisms for infringement of copyright, legislation which may change the existing market structure of digital media distribution is strongly resisted by rightholders, with the result that reform in this area is slow. Although not looked at in detail in this report, competition concerns are also coming into play in various parts of the Internet ecosystem, such as in the net neutrality debate, the investigation into the allegedly anticompetitive behaviour of Google, and even the question of whether or not PSBs should have a significant presence in the online world. Indeed, all of the above emphasises the primarily private nature of the Internet: the only public bodies in a traditional sense of the term making any inroads into the medium are PSBs; in fact, the vast majority of online players are private corporations. In the various discussions throughout the report, it can be seen that especially existing legal human rights protections are not particularly effective against private actors, since they were designed for the old media landscape when the main threat to human rights came from the state. However, now the actors with the capacity to

promote or infringe free speech, access to information and privacy are in fact usually private companies, which leaves Internet users in a weak position regarding the protection on their rights online. In these situations of the privileging of the rights of copyright holders, the control exercised by ISPs over information flow, the increasing concentration in new media which is beginning to attract the attention of competition authorities, and the privatised online space which is not an effective enabler or defender of online rights, it must thus be asked whether the Internet is doing more to empower, or disempower citizens?