*Well, if you're British, so much for that flat-world cyberspace noosphere business.
"Data Protection laws, e-privacy, net neutrality and other telecoms
regulations, copyright enforcement and copyright and intermediary
liability laws are all currently written in the EU."
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EDRi-gram
fortnightly newsletter about digital civil rights in Europe
EDRi-gram 14.13, 29 June 2016
Read online: https://edri.org/edri-gram/14-13/
Contents
1. How digital rights in the UK will be affected by Brexit
2. Advocate General: E-lending must be included to the lending rights
3. Is your internet provider discriminating against your favourite app?
4. A new Regulation for closing down the internet in Turkey
5. Following the money – easy to say, hard to do
6. Poland adopted a controversial anti-terrorism law
7. Recommended Action
8. Recommended Reading
9. Agenda
10. About
1. How digital rights in the UK will be affected by Brexit
The United Kingdom’s vote to leave the EU means that inhabitants of the
country no longer have a clear idea what levels and kinds of protection
of digital rights they will have in the future. Nearly all the relevant
law is European. A lot depends on the kind of model of leaving the EU
that the UK adopts.
Nothing changes in the short term. The UK must abide by legislation,
incorporate new regulations and directives as they come along. Decisions
of the Court of Justice of the European Union (CJEU) must be
implemented. This could produce the potential for conflict between the
UK and European Union, as the EU decisions will be seen to be less
politically legitimate. However, it would be unwise for the UK to pick
fights and fail to abide by EU law, as this would risk a swift ejection,
and certainly weaken the country's negotiating position.
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Data Protection laws, e-privacy, net neutrality and other telecoms
regulations, copyright enforcement and copyright and intermediary
liability laws are all currently written in the EU. Data retention and
Passenger Name Record (PNR) retention are also decided upon at EU level
(up to now with huge British influence). Some of this legislation is
very positive. The new data protection regime will for instance provide
much better enforcement of some basic privacy rights.
EU legislation also has to abide by fundamental rights, defined in the
Charter of Fundamental Rights and interpreted and enforced through the
CJEU. Outside of the EU, the direct influence of the CJEU on UK law will
be much lessened.
Enforcement of human rights
Recently, the CJEU has made many major digital rights advances, such as
limitations on data retention and requiring better privacy protections
from the USA for data transfers, thereby cancelling “Safe Harbour”. This
has not always been popular with the UK government.
In the longer term the CJEU and European Court of Human Rights (ECtHR)
should work to the same privacy standards, so in theory the UK’s
legislation will still be subject to the same considerations. However,
the ECtHR does not make instructions to UK legislators, but sets
principles which must be taken into account when looking at laws. This
leaves a lot of flexibility in the hands of legislators. In contrast,
the CJEU as an EU court makes direct instructions to EU institutions
about laws and decisions, which has been demonstrably effective.
The Single Market
It is possible that these laws continue to be important, depending on
the level of future integration with the Single Market. If so, things
will be difficult for UK digital rights advocates, and digital
industries, in that there will be less opportunities to shape
legislation, for instance by working with Members of the European
Parliament (MEPs). Single Market access is commonly known as the
“Norwegian model” or European Economic Area (EEA) membership.
However, many digital businesses will prefer having the legal frameworks
to standing fully outside of the Single Market. If we are in the EEA,
then the CJEU is no longer involved in UK decision making regarding EU
law. The EEA has its own court for these purposes. It does not consider
human rights in its decisions, however.
Single Market access is both economically rational and politically very
difficult, especially given the debate about immigration, as free
movement of labour is likely to be a requirement. There would still be
payments to the EU. The major change would be control of fish and
agriculture policy.
Many Conservative politicians seem to be edging towards this kind of
position as a workable compromise, albeit they contend they can secure
limits on free movement. EEA membership would satisfy the narrow choice
of the referendum.
Full Brexit
It is also possible that a “full Brexit” leaving the UK outside of the
Single Market would place all these laws into flux. At this point, the
laws might be simply incorporated into UK law, or else, they would be
reviewed and potentially scrapped. For UK digital rights, this would be
the most concerning. The pressure to deregulate in order to compensate
for the loss of single market access would be very high. The changes
could be made very swiftly, with little democratic oversight.
We would need to be confident that the UK would develop much stronger
constitutional protections for human rights to be fully supportive of a
solution along these lines. We would need to be convinced that the UK
Parliament would be in control of the changes and would be given
sufficient time to consider the changes it would be making.
There is a democratic case for a full Brexit, rather than staying within
the Single Market while the EU sets laws with just consultation
processes to understand the position of the UK government.
That said, the influence of EU legislation would not simply disappear.
PNR legislation may have to exist for flights to continue between the UK
and EU, and data protection standards have to exist if UK companies are
to trade with EU citizens. Even the USA has to provide these protections
for Europeans. We could easily end up copying the bulk of legislation
even outside of the Single Market, but of course, with even less
influence over its development, and less of the economic benefits.
The digital environment is already international. There are good reasons
for laws to become more consistent, rather than less. Whatever solution
is adopted, this pressure will exist.
What do we do?
EDRi member Open Rights Group will engage in a discussion in the UK with
supporters and experts about the preferred way forward, and how we deal
with some short term issues, such as enforcement of net neutrality
provisions. Decisions about the UK’s future will be based on much wider
considerations, but we will explain the impacts of different models on
digital rights. If you have thoughts about any of these issues, please
get in touch with Open Rights Group.
This article was originally published at
https://www.openrightsgroup.org/blog/2016/how-digital-rights-will-be-affected-by-brexit.
What does Brexit mean for the IP Bill? (28.06.2016)
https://www.openrightsgroup.org/blog/2016/what-does-brexit-mean-for-the-ip-bill
(Contribution by Jim Killock, EDRi member Open Rights Group, United Kingdom)
2. Advocate General: E-lending must be included to the lending rights
In 2015, the Dutch Association of Public Libraries (VOB) started a legal
procedure against Stichting Leenrecht, the organisation distributing the
remuneration to authors that libraries pay for lending books in the
Netherlands. The purpose of the case was to clarify if the European
Union's Rental and Lending Rights Directive covers the lending of
electronic books. The District Court of The Hague, Netherlands, referred
the case (Vereniging Openbare Bibliotheken v Stichting Leenrecht,
C-174/15) to the the Court of Justice of the European Union (CJEU).
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On 16 June 2016 Advocate General Maciej Szpunar delivered his Opinion,
and advised the CJEU to rule that Article 1(1) of the Rental and Lending
Rights Directive must be interpreted in the sense of including the right
to lend electronic books.
The Advocate General's Opinion states that it is unquestionable that, at
the time of the adoption of the Directive, e-books were not intended to
be included in the Directive's concept of lending, because the
technology relating to e-books was at that time only in its infancy.
However, this does not mean that e-lending should be excluded from the
scope of the Directive. It is indispensable to take into account the
evolution of technology, market and behaviour, especially in areas
strongly influenced by technological progress, such as copyright.
According to the Advocate General, the main objective of copyright is to
safeguard the interests of authors, not the publishers. Including
e-lending in the definition of “lending” would not harm the interests of
authors, but would on the contrary allow a better protection of their
interests. Currently libraries lend books in electronic format, usually
under licensing agreements concluded between libraries and publishers.
This benefits first of all publishers or other intermediaries, while
authors receive no adequate remuneration.
“The Opinion also points out that literary creation is not just an
economic activity, and that the importance of books for the preservation
and access to culture and scientific knowledge has always prevailed over
mere economic considerations.
Today, in the digital age, libraries must be able to continue to fulfil
the task of cultural preservation and dissemination that they performed
when books existed only in paper format,” the Opinion states.
The CJEU's decision in the case is expected later in 2016.
Request for a preliminary ruling from the Rechtbank Den Haag
(Netherlands) lodged on 17 April 2015 — Vereniging Openbare Bibliotheken
v Stichting Leenrecht (Case C-174/15)
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62015CN0174&from=EN
Advocate General’s Opinion in Case C-174/15 Vereniging Openbare
Bibliotheken v Stichting Leenrecht
http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-06/cp160064en.pdf
Advisor to the Court of Justice of the EU: copyright law must evolve
with technology (21.06.2016)
https://www.communia-association.org/2016/06/21/advisor-court-justice-eu-copyright-law-must-evolve-technology/
AG Szpunar says that time-limited e-lending is allowed under EU law and
interpretation of copyright norms must evolve with technology (16.06.2016)
https://ipkitten.blogspot.be/2016/06/ag-szpunar-says-that-time-limited-e.html
3. Is your internet provider discriminating against your favourite app?
Several internet providers across Europe offer you “free” access to some
parts, but not all, of the internet. On the RespectMyNet.eu platform,
users have reported several cases of this uncompetitive and
discriminatory practice called “zero rating”. It is especially common
for mobile data; Internet Service Providers (ISPs) do not charge users
for data used by specific services or applications on their phone, while
imposing charges for all others.
Users have reported on RespectMyNet.eu that the Belgian ISP Mobistar
(now rebranded as Orange) explicitly offers a mobile plan called
“Dauphin” with the feature of “unlimited” (
