DOCSLIB.ORG

3 | 2017 Volume 8 (2017) Issue 3 ISSN 2190-3387

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
3 | 2017 Volume 8 (2017) Issue 3 ISSN 2190-3387 3 | 2017 Volume 8 (2017) Issue 3 ISSN 2190-3387 Editorial: Intermediary Liability as a Human Rights Issue by Martin Husovec The Intermediary Conundrum: Cyber-Regulators, Cyber-Police or Both? by Luca Belli and Cristiana Sappa Law and Electronic Commerce Information Technology, Intellectual Property, Journal of The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters by Giancarlo F. Frosio The Role of the Principle of Effective Judicial Protection in Relation to Website Blocking Injunctions by Saulius Lukas Kalėda The Power of Positive Thinking: Intermediary Liability and the Effective Enjoyment of the Right to Freedom of Expression by Aleksandra Kuczerawy What Does It Matter Who is Browsing? ISP Liability and the Right to Anonymity by Ciarán Burke and Alexandra Molitorisová Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera www.jipitec.eu Séverine Dusollier Chris Reed Karin Sein Journal of Intellectual Property, Information Technology and Electronic Commerce Law Table Of Contents Volume 8 Issue 3 November 2017 www.jipitec.eu [email protected] Special Issue: A joint publication of: Prof. Dr. Thomas Dreier, M. C. J., Intermediary Liability as a Human KIT - Karlsruher Institut für Technologie, Zentrum für Angewandte Rights Issue Rechtswissenschaft (ZAR), Vincenz-Prießnitz-Str. 3, 76131 Karlsruhe Germany Prof. Dr. Axel Metzger, LL. M., Humboldt-Universität zu Editorial: Intermediary Liability as a Human Rights Issue Berlin, Unter den Linden 6, by Martin Husovec 181 10099 Berlin The Intermediary Conundrum: Prof. Dr. Gerald Spindler, Dipl.-Ökonom, Georg-August- Cyber-Regulators, Cyber-Police or Both? Universität Göttingen, by Luca Belli and Cristiana Sappa 183 Platz der Göttinger Sieben 6, 37073 Göttingen The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters Karlsruhe Institute of Technology, by Giancarlo F. Frosio 199 Humboldt-Universität zu Berlin and Georg-August-Universität The Role of the Principle of Effective Judicial Protection in Relation Göttingen are corporations under to Website Blocking Injunctions public law, and represented by by Saulius Lukas Kalėda 216 their respective presidents. Editors: The Power of Positive Thinking: Intermediary Liability and the Thomas Dreier Effective Enjoyment of the Right to Freedom of Expression? Axel Metzger by Aleksandra Kuczerawy 226 Gerald Spindler Lucie Guibault What Does It Matter Who is Browsing? Miquel Peguera ISP Liability and the Right to Anonymity Séverine Dusollier by Ciarán Burke and Alexandra Molitorisová 238 Chris Reed Karin Sein Board of Correspondents: Graeme Dinwoodie Christophe Geiger Ejan Mackaay Rita Matulionyte Giovanni M. Riccio Cyrill P. Rigamonti Olav Torvund Mikko Välimäki Rolf H. Weber Andreas Wiebe Raquel Xalabarder Editor-in-charge for this special issue: Martin Husovec Technical Editor: Philipp Schmechel ISSN 2190-3387 Funded by Martin Husovec Editorial Intermediary Liability as a Human Rights Issue by Martin Husovec* © 2017 Martin Husovec Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Martin Husovec, Editorial: Intermediary Liability as a Human Rights Issue, 8 (2017) JIPITEC 181 para 1. 1 In early summer 2016, a number of scholars from ‘ultimatums’, such as the Code of Conduct, which diverse backgrounds met in Tilburg to discuss issues are meant to incentivize a change without amending of intermediary liability and human rights.1 After the laws. Second, there are a number of new policy a few passionate debates - as well as a round of proposals across the globe, which usually try to drinks - a general feeling arose that the social issues legally impose more proactive measures and not just at stake require a dedicated forum. To keep the wait for the firms to improve things on their own. momentum, we decided to set up an informal group Third, the courts are becoming increasingly involved - ‘Intermediary Liability and Human Rights’ - to kick- in shaping how the environment should look like; off periodical meetings and, on the kind invitation the case-law surrounding hyperlinks and website- of Prof. Spindler, to launch a paper symposium with blocking are perhaps the most salient symbols of JIPITEC. This dedicated volume presents the fruits this trend. And lastly, human rights law and its of this intellectual exercise. Its goal is to highlight community is awakening to the new ‘intermediated’ that design of intermediary liability rules and their realities of the online world. real-world effects can and also should be heavily scrutinized from the human rights law point of 3 To name just a few recent initiatives and view. In this sense, Judge Spano’s recent article,2 in developments. Within the last few years, the which he argues that the existing ECtHR case-law European Court of Human Rights received more is best understood only as a starting point and of than a dozen of new cases in the area.4 The limited precedential value, is a perfect invitation for Council of Europe recently conducted a large scale scholars in this area to join us.3 4 To mention just intermediary liability cases stricto 2 To borrow from the band the Scorpions, ‘wind sensu: ECtHR, K.U. v. Finland (App. no. 2872/02); of change’ is in the air. Despite the fact that ECtHR, Yildirim v. Turkey (App. Nr 3111/10); intermediary liability rules have been around for ECtHR, Akdeniz v. Turkey (App. No 25165/94); some time, the related debates seem to be increasing ECtHR, Cengiz and Others v. Turkey (App. no. in intensity. The selection of contributions in this 48226/10 and 14027/11); ECtHR, Delfi AS v. Estonia issue illustrates this very well. First of all, impatience (Application no. 64569/09) – two decisions; of policy makers results in different types of ECtHR, Magyar Tartalomszolgáltatók Egyesülete and Index.hu ZRT v. Hungary (Application no. * Assistant Professor at the Tilburg University (Tilburg 22947/13); ECtHR, Rolf Anders Daniel Pihl v. Institute for Law, Technology and Society & Tilburg Law Sweden (App. Nr. 74742/14); ECtHR, Payam Tamiz and Economics Center). v United Kingdom (App. no. 3877/14) and pending 1 After the Tilburg meeting organized by me and Tilburg cases of: Kharitonov v Russia (App no. 10795/14); Institute for Law, Technology and Society (TILT), the second Grigoriy Nikolayevich Kablis v. Russia (App. no. meeting took place in Amsterdam and was organized by Tarlach McGonagle at the Institute for Information Law 59663/17); OOO Flavus and others v. Russia (App. (IViR), University of Amsterdam. No. 12468/15). The list of the related cases is 2 Robert Spano, ‘Intermediary Liability for Online User much broader, see - CoE, ‘Internet: case-law of Comments under the European Convention on Human the European Court of Human Rights’, available at Rights’ (2017) Human Rights Law Review, p. 11-12. <http://www.echr.coe.int/Documents/Research_ 3 Feel free to drop me an email. report_internet_ENG.pdf>. 3 181 2017 Editorial study regarding filtering and blocking policies escape any liability. Moreover, they emphasize in its Member States and is working on a set of intermediaries’ regulatory role while contractually political recommendations.5 The civil society regulating the content and applications that their globally launched a discussion about the principles users access and share. regarding the best governmental practices.6 Open Society Foundations commissioned a report on the 7 Frosio argues that we are witnessing the rise of issue of human rights and self-regulation that was monitoring obligations that are being imposed masterfully prepared by IViR.7 The Internet protocol on online intermediaries around the world. He community has just adopted a new tool to respect observes that proactive monitoring and filtering are human rights in the area of Internet standards.8 increasingly finding their way in the legal system as the preferred enforcement strategy through 4 A sceptic may wonder, why all this fuss all of a legislation, judicial decisions, as well as private sudden? ordering across the entire spectrum of legal areas. He interprets this trend as the death of ‘no monitoring 5 Balkin convincingly argues9 that this is due to obligations’. emerging privatized control of speech by ‘new governors’10 that challenges our existing human 8 Kalėda then zooms in at one of such emerging rights safe-guards. As also IViR’s report highlights, policies that is heavily used in the European Union, because the entities are private and our human namely injunctions against intermediaries. In his rights ‘supervision’ only indirect, we are struggling contribution, he analyses how the principle of to approach them in the traditional ways. Unlike effective judicial protection shapes the enforcement the government, these gatekeepers are primarily practice of the website blocking. He argues that these responding not to a process of political accountability, novel injunctions are affecting the rights of multiple but to (mostly economic) incentives on the market. third parties. As a consequence, we should give more But if market outcomes are driven only partly by weight to procedural fundamental rights stemming the legal institutions, then governments can be at from Article 47 of the Charter. This new perspective best ‘co-architects of the environment’. What is has, in his view, several advantages, such as it must then a right approach for achieving human-rights be applied by the courts of their own motion and compliant outcomes? Can existing doctrines be it could lead to the establishment of a minimum always relied on? The contributions of this dedicated procedural standard across the Member States. volume all reflect on and demonstrate this challenge. 9 Kuczerawy in her contribution reviews the 6 To begin with, Belli and Sappa provide a high- possibilities of the existing legal framework from level discussion of how intermediary liability the perspective of freedom of expression.
Load more

Recommended publications
  • Romanian Political Science Review Vol. XXI, No. 1 2021
    Romanian Political Science Review vol. XXI, no. 1 2021 The end of the Cold War, and the extinction of communism both as an ideology and a practice of government, not only have made possible an unparalleled experiment in building a democratic order in Central and Eastern Europe, but have opened up a most extraordinary intellectual opportunity: to understand, compare and eventually appraise what had previously been neither understandable nor comparable. Studia Politica. Romanian Political Science Review was established in the realization that the problems and concerns of both new and old democracies are beginning to converge. The journal fosters the work of the first generations of Romanian political scientists permeated by a sense of critical engagement with European and American intellectual and political traditions that inspired and explained the modern notions of democracy, pluralism, political liberty, individual freedom, and civil rights. Believing that ideas do matter, the Editors share a common commitment as intellectuals and scholars to try to shed light on the major political problems facing Romania, a country that has recently undergone unprecedented political and social changes. They think of Studia Politica. Romanian Political Science Review as a challenge and a mandate to be involved in scholarly issues of fundamental importance, related not only to the democratization of Romanian polity and politics, to the “great transformation” that is taking place in Central and Eastern Europe, but also to the make-over of the assumptions and prospects of their discipline. They hope to be joined in by those scholars in other countries who feel that the demise of communism calls for a new political science able to reassess the very foundations of democratic ideals and procedures.
    [Show full text]
  • Blogger Voice of Young People
    TALKING LANGUAGES In Sleepyville, Italy, there is a political conversation going on. The Slovenian minority of the city proposed, that lessons of Slovenian language should be obligatory for all secondary schools in the city. Many parties were against this proposal, since only 20% of the population are Slovenians. Parties proposed many different solutions. For example Italian Pirate party was putting its hopes for the future and proposing that everyone should learn Esperanto. They also suggested that we should form a council of children. The Liberal Economical party wanted us to think about the young people, whom council decision will most clearly affect. Feminist party was mainly happy to see so many female faces in the council and especially the gender of the mayor made them really happy. Italian Nationalists party thought, that if Italian kids would learn Slovenian, it would be easier for criminal Slovenian kids to sell them drugs. Meanwhile, the Workers party was again preparing for the revolution. During their speech, the mayor felt a bit insecure and the security was called. Twice the party members were told to back up from the mayor’s table. This seemed to confuse her so much, that she dozed off in some points of the conversation. Someone also told the Workers party members to smoke less weed. During the coffee brake an interesting suspicion was raised. The member of the APP, Oldrich Justa had been seen talking to the mayor before the council meeting. Some suggested corruption, but when asked about personal relationship between Justa and the mayor, the smile on his face couldn't have been wider.
    [Show full text]
  • 1 the European Court of Justice Case of Breyer Mr. Alan S. Reid Sheffield
    The European Court of Justice case of Breyer Mr. Alan S. Reid Sheffield Hallam University Abstract This case note analyses the impact and significance of the European Court of Justice decision in Breyer. The European Court of Justice has expanded the definition of personal data to include dynamic IP addresses. The judgment improves the privacy situation of internet users across the European Union. The facts of Breyer1 Patrick Breyer is a German politician and activist who belongs to the Pirate Party. The Pirate Party was originally set up in Sweden in 2006, as a single issue political party, committed to the modernisation of copyright law in Sweden, following the crackdown on The Pirate Bay peer-to-peer network. After limited success in Sweden, sister parties sprung up across Europe, in order to capitalise on the notoriety of The Pirate Bay. In order to broaden their appeal, the European Pirate Parties set out common themes of campaigning interest, in particular, on issues surrounding the internet, such as open access to information, freedom of expression and privacy. As a technophile and politician committed to internet freedoms, Patrick Breyer vociferously objected to various Federal German government websites retaining details of his dynamic Internet Protocol (IP) address after he had completed browsing. Internet Protocol (IP) addresses are the essential backbone of the internet. Internet protocols are the method by which interconnected computers and devices communicate, share and transfer data between themselves. An IP address consists of either four pairs of numbers (version 4)2 separated by three colons or eight pairs of numbers separated by six colons (version 6).3 The US organisation ICANN4, the Internet Corporation for Assigned Names and Numbering, is tasked with overseeing the interconnectivity and compatibility required for the continued successful operation of the internet infrastructure.
    [Show full text]
  • In Their Own Words: Voices of Jihad
    THE ARTS This PDF document was made available from www.rand.org as CHILD POLICY a public service of the RAND Corporation. CIVIL JUSTICE EDUCATION Jump down to document ENERGY AND ENVIRONMENT 6 HEALTH AND HEALTH CARE INTERNATIONAL AFFAIRS The RAND Corporation is a nonprofit research NATIONAL SECURITY POPULATION AND AGING organization providing objective analysis and PUBLIC SAFETY effective solutions that address the challenges facing SCIENCE AND TECHNOLOGY the public and private sectors around the world. SUBSTANCE ABUSE TERRORISM AND HOMELAND SECURITY Support RAND TRANSPORTATION AND INFRASTRUCTURE Purchase this document WORKFORCE AND WORKPLACE Browse Books & Publications Make a charitable contribution For More Information Visit RAND at www.rand.org Learn more about the RAND Corporation View document details Limited Electronic Distribution Rights This document and trademark(s) contained herein are protected by law as indicated in a notice appearing later in this work. This electronic representation of RAND intellectual property is provided for non-commercial use only. Unauthorized posting of RAND PDFs to a non-RAND Web site is prohibited. RAND PDFs are protected under copyright law. Permission is required from RAND to reproduce, or reuse in another form, any of our research documents for commercial use. For information on reprint and linking permissions, please see RAND Permissions. This product is part of the RAND Corporation monograph series. RAND monographs present major research findings that address the challenges facing the public and private sectors. All RAND monographs undergo rigorous peer review to ensure high standards for research quality and objectivity. in their own words Voices of Jihad compilation and commentary David Aaron Approved for public release; distribution unlimited C O R P O R A T I O N This book results from the RAND Corporation's continuing program of self-initiated research.
    [Show full text]
  • Results of Roll-Call Votes of 2 April 2019
    Committee on Industry, Research and Energy Results of roll-call votes of 2 April 2019 Table of Contents 1. Proposal for a regulation of the European Parliament and of the Council establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination - 2018/0224(COD) - Rapporteur: Dan Nica - Vote on the partial agreement resulting from interinstitutional negotiations ...................................................................... 2 2. Proposal for a decision of the European Parliament and of the Council on establishing the specific programme implementing Horizon Europe – the Framework Programme for Research and Innovation - 2018/0225(COD) - Rapporteur: Christian Ehler - Vote on the partial agreement resulting from interinstitutional negotiations ................................................................................................................ 3 Key to symbols: + (in favour), - (against), 0 (abstention). 1. Proposal for a regulation of the European Parliament and of the Council establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination - 2018/0224(COD) - Rapporteur: Dan Nica - Vote on the partial agreement resulting from interinstitutional negotiations 49 + ALDE Fredrick Federley, Gesine Meissner, Lieve Wierinck ECR Zdzisław Krasnodębski, Rupert Matthews, Evžen Tošenovský EFDD Rosa D'Amato, Rolandas Paksas ENF Angelo Ciocca GUE/NGL Jaromír Kohlíček, Paloma López Bermejo,
    [Show full text]
  • Review of the EU Copyright Framework
    Review of the EU copyright framework European Implementation Assessment Review of the EU copyright framework: The implementation, application and effects of the "InfoSoc" Directive (2001/29/EC) and of its related instruments European Implementation Assessment Study In October 2014, the Committee on Legal Affairs (JURI) requested from the European Parliament Research Service (EPRS) an Ex Post Impact Assessment on Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc). This EPRS publication was originally commissioned in the context of JURI's own- initiative implementation report, which was adopted in Plenary in July 2015, Rapporteur Julia Reda MEP. However, it is also relevant to the work of JURI Committees' Working Group on Intellectual Property Rights and Copyright (CWG), chaired by Jean Marie Cavada MEP. Furthermore, this request was made in the wider context of the Commission's review of the EU legislative framework on copyright, and the ensuing legislative proposals, which have been a long time in the planning and which are now expected for the 4th quarter of 2015. The objective of these proposals is to modernise the EU copyright framework, and in particular the InfoSoc Directive, in light of the digital transformation. Accordingly, in response to the JURI request, the Ex-Post Impact Assessment Unit of the European Parliament Research Service decided to produce a "European Implementation Assessment on the review of the EU copyright framework". Implementation reports of EP committees are now routinely accompanied by European Implementation Assessments, drawn up by the Ex-Post Impact Assessment Unit of the Directorate for Impact Assessment and European Added Value, within the European Parliament's Directorate-General for Parliamentary Research Services.
    [Show full text]
  • European Parliament Elections 2019 - Forecast
    Briefing May 2019 European Parliament Elections 2019 - Forecast Austria – 18 MEPs Staff lead: Nick Dornheim PARTIES (EP group) Freedom Party of Austria The Greens – The Green Austrian People’s Party (ÖVP) (EPP) Social Democratic Party of Austria NEOS – The New (FPÖ) (Salvini’s Alliance) – Alternative (Greens/EFA) – 6 seats (SPÖ) (S&D) - 5 seats Austria (ALDE) 1 seat 5 seats 1 seat 1. Othmar Karas* Andreas Schieder Harald Vilimsky* Werner Kogler Claudia Gamon 2. Karoline Edtstadler Evelyn Regner* Georg Mayer* Sarah Wiener Karin Feldinger 3. Angelika Winzig Günther Sidl Petra Steger Monika Vana* Stefan Windberger 4. Simone Schmiedtbauer Bettina Vollath Roman Haider Thomas Waitz* Stefan Zotti 5. Lukas Mandl* Hannes Heide Vesna Schuster Olga Voglauer Nini Tsiklauri 6. Wolfram Pirchner Julia Elisabeth Herr Elisabeth Dieringer-Granza Thomas Schobesberger Johannes Margreiter 7. Christian Sagartz Christian Alexander Dax Josef Graf Teresa Reiter 8. Barbara Thaler Stefanie Mösl Maximilian Kurz Isak Schneider 9. Christian Zoll Luca Peter Marco Kaiser Andrea Kerbleder Peter Berry 10. Claudia Wolf-Schöffmann Theresa Muigg Karin Berger Julia Reichenhauser NB 1: Only the parties reaching the 4% electoral threshold are mentioned in the table. Likely to be elected Unlikely to be elected or *: Incumbent Member of the NB 2: 18 seats are allocated to Austria, same as in the previous election. and/or take seat to take seat, if elected European Parliament ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• www.eurocommerce.eu Belgium – 21 MEPs Staff lead: Stefania Moise PARTIES (EP group) DUTCH SPEAKING CONSITUENCY FRENCH SPEAKING CONSITUENCY GERMAN SPEAKING CONSTITUENCY 1. Geert Bourgeois 1. Paul Magnette 1. Pascal Arimont* 2. Assita Kanko 2. Maria Arena* 2.
    [Show full text]
  • Experimenting Liquidfeedback for Online Deliberation in Civic Contexts
    Experimenting LiquidFeedback for Online Deliberation in Civic Contexts Fiorella De Cindio and Stefano Stortone Department of Computer Science, University of Milano Via Comelico 39/41, 20135 Milano {fiorella.decindio,stefano.stortone}@unimi.it Abstract. The growing distrust in political institutions is accompanied by new opportunities for civic involvement through online technological platforms. LiquidFeedback is one of the most interesting, as it embeds innovative features to support online deliberative processes. This software has been designed as an intranet tool for closed and homogeneous groups but it has also recently been used in large civic context, involving generic citizens. Aim of the paper is discussing the potential of LiquidFeedback for these purposes, by presenting the preliminary analysis of the “ProposteAmbrosoli2013” initiative carried on, in occasion of the recent elections in the Lombardy region (Italy). Keywords: LiquidFeedback, online deliberation, democracy, civic participation. 1 Introduction The “endless” crisis of the western models of economy and democracy imposes a renewed effort to imagine and develop new forms of civic engagement (see for instance [13]). The persistent demands coming from the civil society organizations as well as from international organizations [4, 2] find more and more the concrete support of the ICTs. New software tools have been developed to facilitate knowledge sharing and the organization of new practices of crowdsourcing and collaboration. These tools are already being used by public bodies for opening government (see, e.g., [11]) and by the emerging grassroots organizations [3], to build up consultative and deliberative processes. One of the most popular software tools for idea gathering is Ideascale (ideascale.com), already adopted in 2008 to support President Obama’s Open Government Initiative, and afterward widely used worldwide.
    [Show full text]
  • Violent Jihad in the Netherlands
    Violent Jihad in the Netherlands Current trends in the Islamist terrorist threat Violent Jihad in the Netherlands Current trends in the Islamist terrorist threat 2 Contents Foreword 5 Introduction 7 The murder of Theo van Gogh: consequences and effects 7 General trends in the development of jihadism 9 Framework of terms and definitions 10 1 From exogenous threat to home-grown terrorism 13 1.1 What is a jihadist network? 13 1.2 Historical development of network formation 15 1.2.1 The traditional phase: migration of jihadists 15 1.2.2 The proliferation phase: recruitment 16 1.2.3 The ‘home-grown’ phase: radicalisation and jihadisation 17 1.3 Three types of jihadist networks 17 2 Decentralisation and local implantation of international jihad19 2.1Al-Qaeda: from ‘network of gynetworks’ 19 to trademark and ideolo 2.2 Ideology of global violent jihad 21 2.3 Decentralisation of international jihad 22 2.4 Local implantation of international jihad 26 3 Radicalisation and the emergence of local networks 29 3.1Radicalisation, recruitment and jihadisation 29 3.2 The religious context of radicalisation 30 3.3 The socio-political context of radicalisation 33 3.4 The cultural and socio-psychological context of radicalisation 35 3.5 Emergence of local autonomous cells and networks 37 3.6 Backgrounds and functioning of local autonomous networks 38 3.7 The significance of the Hofstad network 39 4 Virtualisation of jihad 43 4.1The Internet as a propulsion of the jihad movement 43 4.2 Al-Qaeda as a virtual database (top-down) 44 4.3 The virtual umma (grass
    [Show full text]
  • The New Frontiers of User Rights
    American University International Law Review Volume 32 Article 1 Issue 1 Issue1 2016 The ewN Frontiers Of User Rights Niva Elkin-Koren University of Haifa, [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Elkin-Koren, Niva (2016) "The eN w Frontiers Of User Rights," American University International Law Review: Vol. 32 : Iss. 1 , Article 1. Available at: http://digitalcommons.wcl.american.edu/auilr/vol32/iss1/1 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. ELKINREVISED.DOCX (DO NOT DELETE) 10/24/16 3:45 PM ARTICLES THE NEW FRONTIERS OF USER RIGHTS * NIVA ELKIN-KOREN I. INTRODUCTION ............................................................................2 II. FAIR USE AND NEW CHALLENGES TO ACCESS TO KNOWLEDGE ..............................................................................5 A. ACCESS TO KNOWLEDGE ............................................................5 B. NEW FRONTIERS IN ACCESS TO KNOWLEDGE ...........................8 C. BARRIERS TO ACCESS AND COPYRIGHT ENFORCEMENT BY ONLINE INTERMEDIARIES .......................................................13
    [Show full text]
  • Brussels, 18 December 2015 Dear High Representative
    Brussels, 18 December 2015 Dear High Representative, After 16 years of exile in the Netherlands, Ms. Victoire Ingabire Umuhoza, president of the Unified Democratic Forces FDU-Inkingi, a coalition of Rwandan opposition parties, returned to Rwanda to run for presidential elections scheduled for August 2010. On 14th October she was arrested after weeks of police harassment, intimidation and media lynching, charged with genocide ideology, genocide denial, and conspiracy against the regime. Charges commonly used to silence any opposition in a country where freedom of expression is severely curtailed. After a flawed trial, condemned among others by Amnesty International, Human Rights Watch and the Foundation Jean Jaurès, she was sentenced in first 8 years in prison. On appeal, the sentence was increased to 15 years. Yet, the Supreme Court had invalidated some of the evidences used to convict her in the first place. Having lost all confidence in the justice of her country led by an authoritarian regime, she filed an application with the African Court of Human Rights and Peoples based in Arusha, Tanzania. Nominated for Sakharov Prize in 2012, the fate of this mother, nicknamed by her followers as the Rwandan Aung San Suu Kyi, should challenge us. Pursuant to the resolution of our Parliament 2013/2641 (RSP) of 25 may 2013, we ask the European Commission to officially request the immediate release of Madam Ingabire. In the meantime, we urge the Commission to take action to improve her prison conditions by ensuring, among others, a free and easy access to legal counsel and her recognition as a political prisoner.
    [Show full text]
  • No Monitoring Obligations’ the Death of ‘No Monitoring Obligations’ a Story of Untameable Monsters by Giancarlo F
    The Death of ‘No Monitoring Obligations’ The Death of ‘No Monitoring Obligations’ A Story of Untameable Monsters by Giancarlo F. Frosio* Abstract: In imposing a strict liability regime pean Commission, would like to introduce filtering for alleged copyright infringement occurring on You- obligations for intermediaries in both copyright and Tube, Justice Salomão of the Brazilian Superior Tribu- AVMS legislations. Meanwhile, online platforms have nal de Justiça stated that “if Google created an ‘un- already set up miscellaneous filtering schemes on a tameable monster,’ it should be the only one charged voluntary basis. In this paper, I suggest that we are with any disastrous consequences generated by the witnessing the death of “no monitoring obligations,” lack of control of the users of its websites.” In order a well-marked trend in intermediary liability policy to tame the monster, the Brazilian Superior Court that can be contextualized within the emergence of had to impose monitoring obligations on Youtube; a broader move towards private enforcement online this was not an isolated case. Proactive monitoring and intermediaries’ self-intervention. In addition, fil- and filtering found their way into the legal system as tering and monitoring will be dealt almost exclusively a privileged enforcement strategy through legisla- through automatic infringement assessment sys- tion, judicial decisions, and private ordering. In multi- tems. Due process and fundamental guarantees get ple jurisdictions, recent case law has imposed proac- mauled by algorithmic enforcement, which might fi- tive monitoring obligations on intermediaries across nally slay “no monitoring obligations” and fundamen- the entire spectrum of intermediary liability subject tal rights online, together with the untameable mon- matters.
    [Show full text]