CMLP International Blog

Will E.U. Court's Privacy Ruling Break the Internet?

In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).   read more »

Will E.U. Court's Privacy Ruling Break the Internet?

In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).   read more »

Montesquieu, Come Back! (The French Police Already Know Where You Are)

On December 19, 2013, the French Loi de Programmation Militaire (the Military Program law, or "LPM"), was enacted. Article 20 of the LPM, which will come into force on January 1, 2015, authorizes the government to require Internet Service Providers (ISPs) and web hosts to provide "information and documents processed or stored," including geolocation data and metadata in real time, without having to first ask for an authorization from a judge. The new law raises serious questions regarding separation of powers and the extent of administrative authority in France.

A Surveillance Law Both Broad and Vague

Article 20 of the LPM allows the Prime Minister to authorize specially designated agents from the ministers of police, defense, economics and budget to issue demands to ISPs for:

"information or documents processed or preserved by their networks or electronic communications services, including technical data relating to the identification subscription or connection to electronic communications service numbers, identification of all the numbers subscription or connection to a designated person, the location of the terminal equipment used as well as a subscriber's communications on the list of dialed numbers and callers, duration and timing of communications"   read more »

French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions. And although the TGI stopped just short from explicitly calling Google an editor, it required that Google build a filtering system to automatically block the pictures at stake and thus provide Mosley with obscurity for his actions.   (The decision is available here in French, with a link to a Google Translate English version.)

Mosley's Initial Lawsuits

Mosley is a former President of the Fédération Internationale de l'Automobile, which manages the Formula One racing championship. He is also the son of Oswald Mosley, who founded the British Union of Fascists in the 1930’s. 

In March 2008, the now defunct UK tabloid News of the World published images of Mosley taken surreptitiously during a sexual party, calling it a "sick Nazi orgy.” The tabloid also posted on its site an edited version of the video from which the images had been extracted, but removed it voluntarily after receiving a letter from Mosley’s solicitors.

Mosley sued News of the World in the UK for invasion of privacy, also claiming that the sexual party did not have a Nazi theme, and sought an injunction to restrain the tabloid from making the video available.  The High Court found that publishing these images breached Mosley’s right to privacy.   read more »

French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions. And although the TGI stopped just short from explicitly calling Google an editor, it required that Google build a filtering system to automatically block the pictures at stake and thus provide Mosley with obscurity for his actions.   (The decision is available here in French, with a link to a Google Translate English version.)

Mosley's Initial Lawsuits

Mosley is a former President of the Fédération Internationale de l'Automobile, which manages the Formula One racing championship. He is also the son of Oswald Mosley, who founded the British Union of Fascists in the 1930’s. 

In March 2008, the now defunct UK tabloid News of the World published images of Mosley taken surreptitiously during a sexual party, calling it a "sick Nazi orgy.” The tabloid also posted on its site an edited version of the video from which the images had been extracted, but removed it voluntarily after receiving a letter from Mosley’s solicitors.

Mosley sued News of the World in the UK for invasion of privacy, also claiming that the sexual party did not have a Nazi theme, and sought an injunction to restrain the tabloid from making the video available.  The High Court found that publishing these images breached Mosley’s right to privacy.   read more »

Ice Roads and Chilled Speech: ECHR Tags News Portal for Reader Comments

The Chamber of the First Section of the European Court of Human Rights held unanimously on October 10 that making a news portal liable for defamatory comments posted by its readers does not violate article 10 of the European Convention of Human Rights protecting free speech.

This decision, Delfi v. Estonia, may have negative effects on freedom of expression on the web as sites may become concerned about the responsibilities they could face if they keep their digital soap boxes open to the public.

Here are the facts of the case. Applicant Delfi, one of Estonia's largest news portals, allowed visitors to post comments about articles published on the site. About 10,000 comments were published every day, most of them anonymously. Delfi did not edit or moderate the comments, but those including obscene words were deleted automatically through a word-based filter. Also, users could flag insulting or hate-inciting comments, which were then removed. Victims of defamatory comments could contact Delfi, which deleted such comments immediately.

In January 2006, Delfi published an article about an Estonian ferry company whose decision to change ferry routes had caused some public ice roads to break. These roads are opened every winter by the Estonian government on some parts of the frozen Baltic Sea to allow traffic between the mainland and various islands. They can be used for free instead of paying a fee to the ferry company, and this is why many irate readers published inflammatory comments about the ferry company and about L., its sole majority shareholder.   read more »

An Increase in Infringement or the Promotion of Censorship? The Growing Tension of VPN Use

In the days of unwarranted government surveillance and elaborate data collection, people increasingly rely on anonymizing services to keep their online activities private, such as proxy servers, encrypted cloud storage, and virtual private networks. Virtual private networks, or VPNs, route online communications through a secure and encrypted private network to a remote server (sometimes in a jurisdiction with greater protection for freedom of speech or weaker law enforcement). That computer in turn accesses content on the Internet and passes it back through the private network to the user. From outside the network, the only visible traffic is to and from the remote server, leaving the user anonymous. This ability to anonymize, however, can be used for multiple purposes, including to increase secrecy in unlawful actions but also to allow for unhindered expression and freedom from censorship.   read more »

An Increase in Infringement or the Promotion of Censorship? The Growing Tension of VPN Use

In the days of unwarranted government surveillance and elaborate data collection, people increasingly rely on anonymizing services to keep their online activities private, such as proxy servers, encrypted cloud storage, and virtual private networks. Virtual private networks, or VPNs, route online communications through a secure and encrypted private network to a remote server (sometimes in a jurisdiction with greater protection for freedom of speech or weaker law enforcement). That computer in turn accesses content on the Internet and passes it back through the private network to the user. From outside the network, the only visible traffic is to and from the remote server, leaving the user anonymous. This ability to anonymize, however, can be used for multiple purposes, including to increase secrecy in unlawful actions but also to allow for unhindered expression and freedom from censorship.   read more »

CJEU Advocate General Finds No Right to be Forgotten by Search Engines under EU Law

On June 25, 2013, the Opinion of the Advocate General Niilo Jääskinen (AG) in case C-131/12, Google Spain v. Agencia Española de Protección de Datos, was published. This case, which is pending at the Court of Justice of the European Union (CJEU), is being closely watched because one of the questions presented to the court is about the right to be forgotten by search engines. This question implicates the proper balance of freedom of expression and protection of personal data and privacy under EU law.

The case is also interesting because it is the first time that the CJEU is asked to interpret the 1995 Data Protection Directive vis-à-vis search engines. When the CJEU finally reaches a decision in this case, it will be binding not only in the Spanish Courts, but in all the national courts of the 28 Member States of the European Union.

Facts of the Case

In 1998, a Spanish newspaper published, both off-line and online, information about a court-ordered foreclosure auction to pay social security debt. In 2009, the debtor, who had since paid his debt, discovered that ‘googling' his name led to a link to the online notice.

He asked the newspaper to take the information down, but the editor refused as the publication had originally been made by order of the Ministry of Labor and Social Affairs. He then asked Google Spain to stop referencing the link in its search results and also complained to Spain's Data Protection Authority, the Agencia Española de Protección de Datos (AEPD).   read more »

Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)   read more »

   
 
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