We Will Remember Them

The Telegraph reports that the EU wants the "digital right to be forgotten":

Embarrassing, inaccurate or simply personal data will have to be deleted from the internet and company databases if consumers ask, under a new set of European laws.

The move will mean that social networks such as Facebook or Twitter will have to comply with users' requests to delete everything they have ever published about themselves online. It will also mean that consumers will be able to force companies that hold data about them, such as for Tesco's Clubcard, to remove it. 

Naturally it being the Telegraph and all matters EU this isn't actually recent news. The EU have been keen to do this for some time. Eager to update the 1995 Data Protection Directive (95/46/EC), here's the EU Commission's paper in 2010 (page 9):

"...clarifying the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes. This is the case, for example, when processing is based on the person’s consent and when he or she withdraws consent or when the storage period has expired;"

And from a "EU data protection reform – frequently asked questions":

For example, there should be a "right to be forgotten," which means that individuals should have the right to have their data fully removed when it is no longer needed for the purposes for which it was collected. People who want to delete profiles on social networking sites should be able to rely on the service provider to remove personal data, such as photos, completely.

Similarly, users should know and understand about how their internet use is being monitored for the purposes of behavioural advertising. For example, people should be aware when online retailers use previously viewed web sites as a basis to make product suggestions.

It is also important that individuals are informed when their data has been unlawfully accessed, altered or destroyed by unauthorised persons. The Commission is therefore considering extending the obligation to notify personal data breaches beyond the currently covered telecommunications sector to other areas, such as the financial industry.

And the reason the EU is keen on this is relatively simple, it allows another power grab which leads onto more regulation of the internet, dressed up as 'looking after our interests', as well as another important persuasive factor:

The changes...also include a new EU power to fine companies up to 2 per cent of their global turnover if they breach the rules.

More potential coffers in the kitty, how convenient.

But despite this, going by the comments under the Telegraph article the EU move appears to be depressingly popular - "at last the EU does something useful" is a common one. The irony of complaining about lack of privacy on the internet by...er...posting a comment on the internet appears to be lost; epitomised by this gem (click to enlarge):

One wonders why you'd complain about internet privacy when voluntarily signing up to a 'social networking' website where the fundamental business model is based on sharing information.

Then there's the practicalities - one man's privacy is another's free speech. What if you want to as an example, years later, erase a photograph of yourself on Facebook being embarrassingly drunk but the other chap in the picture finds it highly amusing and wants to retain it? Whose rights come first?

What if you're on a protest and photographed by a newspaper who then advertises their story on Facebook. Should you be able to insist Facebook remove the picture? This would surely be tantamount to censorship. And we all know where these kind of 'helpful' laws' eventually end up:

Wikipedia is under a censorship attack by a convicted murderer who is invoking Germany’s privacy laws in a bid to remove references to his killing of a Bavarian actor in 1990.

And there's the technicalities. Is it possible to request that every bit of data that might identify you is erased? For example removing IP addresses, logs and timestamps? The list would be endless and is impossible to enforce. What about demanding that even your request for deletion gets deleted?

In summary, what we have is an unelected and unaccountable Government body wanting to regulate the internet, and thus by implication free speech, on the pretext of our own protection. That, history tells us, never leads to anywhere good.

Legal Challenge To The Digital Economy Bill

As I blogged here back in March, aside from the justified draconian criticisms of the Digital Economy Bill, the other problem with it, is that it could be challenged under EU law. This is precisely what is now happening, as TalkTalk and BT are going to the High Court to in effect challenge the legality of the Act. The BBC reports:

BT and TalkTalk are seeking a judicial review of the controversial Digital Economy Act, BBC News has learned.

The two internet service providers want the High Court to clarify the legality of the act before it is implemented.

The act was "rushed through" parliament before the general election, they say.

Both think it had "insufficient scrutiny" and question whether its proposals to curb illegal file-sharing harm "basic rights and freedoms".

In particular TalkTalk and BT are attempting to seek:

clarity as to whether the act conflicts with EU legislation.

It could conflict with Europe's e-commerce directive which states that ISPs are "mere conduits" of content and should not be held responsible for the traffic on their networks.

It may also be in contravention of the privacy and electronic communciations directive, said Mr Heaney.

I simply find it astonishing that a mere humble blogger like myself, with no training in EU law, was able to predict this, yet our elected legislators neither knew nor cared. The coalition's response to the challenge?:

But the coalition government told the BBC it had no plans to change it.

"The Digital Economy Act sets out to protect our creative economy from the continued threat of online copyright infringement, which industry estimates costs the creative industries, including creators, £400m per year," read a statement from the Department of Business, Innovation and Skills.

"We believe measures are consistent with EU legislation and that there are enough safeguards in place to protect the rights of consumers and ISPs and will continue to work on implementing them."

We shall see. Leaving the EU element aside from moment, it's interesting that the unpopularity of this Act is reflected by the Your Freedom website which has more than a few requests to repeal it.

"It’s time to have your say. After all – it’s your freedom", the website promises. The coalition attitude to the Act? "We have no plans to change it?"

This listening to the voters marlarky is going well isn't it?

The Digital Economy Bill

The controversial Digital Economy Bill has now passed the House of Lords and is now likely to become part of the Parliamentary 'wash up' process before dissolution of Parliament:

The Digital Economy Bill is now expected to be rushed through the Commons before the general election.

The bill, put forward by Business Secretary Lord Mandelson, has been welcomed by the music industry because it includes plans to suspend the internet accounts of people who persistently download material illegally.

The draconian copyright bill which is warmly welcomed by the music industry was proposed not long after Lord Mandelson had dined with record exec David "You're so vain" Geffen - a coincidence I'm sure.

The problem is, as I blogged here, the bill is likely to be in breach of EU law. The provision to cut off internet access without a fair trial could run foul of the EU Telecoms Reform which contains this:

With regard to any measures of Member States taken on their Internet access (e.g. to fight child pornography or other illegal activities), citizens in the EU are entitled to a prior fair and impartial procedure, including the right to be heard, and they have a right to an effective and timely judicial review.

However, the bill may also run into further problems because there's also another possible breach as well. The bill contains this (my emphasis):

124A Obligation to notify subscribers of copyright infringement reports

(1) This section applies if it appears to a copyright owner that—

(a) a subscriber to an internet access service has infringed the
owner’s copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another
person to use the service, and that other person has infringed
the owner’s copyright by means of the service.

This means places such as universities, libraries, and small businesses, like coffee shops that offer free Wi-Fi hotspots, would effectively be held responsible for the actions of customers that use its networks, even if it was password-protected. They would become responsible for customers' alleged copyright infringement.

But this may break EU law as well, specifically EU Directive 2000/31/EC, which gives network providers immunity from liability for the actions of their users even if they are ignorant of those actions. Article 14 of the Directive states:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

and Article 15 makes clear that there's no general obligation to monitor:

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

So there's scope that the bill might be challenged should it pass. A potential mess.

It's all rather dispiriting. An unelected Lord, with form on being less than candid, proposes laws which rides roughshod over civil liberties, directly benefiting those that had lunch with him, but which might then conflict with other laws passed by a foreign government entirely unaccountable to the people.

With just over 7 weeks to an election you have to wonder where the voters are in all this.

EU Telecoms Reform

Today marks the entry into force of the EU Telecoms Reform which member states have until June 2011 to transpose into national legislation.

Aside from the fact it will establish another unaccountable supranational regulator:

Establishment of the European Body of Telecoms Regulators BEREC (spring 2010) – Note that a decision on the definitive seat of BEREC will require agreement between the governments of all 27 Member States;

...it's another example of a potential conflict between UK and EU law.

Currently being steered through Parliament is the Digital Economy Bill, which contains controversial measures that allow draconian internet cut-off provisions without the need for a Judge - and, as usual with this Government, its wide-ranging scope also allows these measures to be used for more than its original purpose of copyright-infringement.

However, the EU Telecoms Reform contains this (my emphasis in bold):

...now explicitly state that any measures taken by Member States regarding access to or use of services and applications through telecoms networks must respect the fundamental rights and freedoms of citizens, as they are guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and in general principles of EU law. Such measures must also be appropriate, proportionate and necessary within a democratic society. In particular, they must respect the presumption of innocence and the right to privacy. With regard to any measures of Member States taken on their Internet access (e.g. to fight child pornography or other illegal activities), citizens in the EU are entitled to a prior fair and impartial procedure, including the right to be heard, and they have a right to an effective and timely judicial review.

So is the Digital Economy Bill compatible? Commissioner Viviane Reding's views on similar Spanish proposals suggests not:

Spanish measures that would allow for the cutting off of internet access without a prior fair and impartial procedure in front of a judge is certain to run into conflict with European law.

Are the Government aware of this? Have they consulted the EU (their track record suggests not)? The Lords will probably water this down a great deal but even so this looks like another waste of time in the making.