Monday, August 20, 2018

Breaking for Vacation and to Research Issues Relating to Online Press Freedom: Back on September 4th

          By Chuck Black

The Commercial Space blog will be taking a short break to enjoy the final two weeks of summer and go to the beach.

We'll also be doing some background research on one possible American and one far more probable European Union (EU) legislative initiative directly related to news coverage and freedom of speech issues.

Both have the potential to change, disrupt or even shut down almost all online news services, including this blog.

The first. a US based initiative, is related to a series of potential amendments to Section 230 of the US Communications Decency Act of 1996.

Section 230 has been traditionally interpreted by US courts as saying that operators of internet services (including social media outlets, such as Menlo Park CA based FaceBook, San Francisco CA based Twitter and others) are "not to be construed as publishers" and are therefore not legally liable for the words of third parties who use their services.

Canada also benefits from the Section 230 provisions. As outlined in the December 1st, 2017 Michael Geist post, "Canada’s Missing Internet Provision: Why NAFTA Offers the Chance to Establish Long Overdue Online Speech Safeguards," the rules are considered to be:
...the single most important legal protection for free speech on the Internet, (which) establish a safe harbour that ensures online services are not liable for the content posted by their users. 
My (previous) Globe and Mail op-ed (the November 30th, 2017 post, "NAFTA offers the chance to establish long overdue online speech safeguards" ) notes that over the past two decades, the CDA Section 203(c) provision has been used by every major internet service – from Google to Amazon to Airbnb – to ensure that courts, not private companies, determine what is lawful and permitted to remain online.
As outlined in the August 6th, 2018 Huffington Post article, "The One Law That’s The Cause Of Everything Good And Terrible About The Internet, and the Push to Change it, for Good or Ill," the Communications Decency Act has received a broad legal interpretation by US courts, which essentially "gave birth to the social web and the digital platform monopolies that we have today."

But this very successful legislation currently seems to be breaking down.

Both right and left wing advocates for the major US political parties now argue that the very same digital monopolies created by the Section 230 regulations dominate entire sectors to the point where it is practically impossible to avoid using them when exchanging information.

Which means that anyone looking to get his or her message out, including politicians, activists, advocates and even news services, are forced to use social media outlets and follow their rules.

Pundits also argue that social media organizations are increasingly caving to political programs designed to pressure them into "deplatforming" controversial political viewpoints, long before the specifics can be adjudicated by the court system.

This state of affairs is contrary to the original intent of the Section 230 legislation which, is intended to preserve freedom of expression.

Both republicans and democrats in the US have accused the various social media giants of bias because of the onerous legal process required to adjudicate social media decisions. The process is considered to be undefined, opaque and not terribly understandable to social media users on either side of the political spectrum.

All of which suggests that, if any intentional bias actually does exists, then it almost certainly favors the social media monopolies who can pretty much do whatever they want, a situation which is also contrary to the intent of the Communications Decency Act.

As things stand now, you need a great deal of money, time and effort to sue Facebook if it blocks your posts, which gives the social media monopolies a substantial advantage during negotiations.

The Donald Trump administration in the US has signaled to the public that it will be "reviewing" the Section 230 regulations, in part because of the recent banning of American radio show host Alex Jones and other conservative voices from San Mateo CA based YouTube and other social media platforms.

Jones, a strong Trump supporter (and a bit of a crazy "conspiracy theorist," with extreme, but not necessarily illegal viewpoints), will likely need to sue multiple tech giants over a period of years in order to clear his name and regain his online access.

All of which bodes ill for anyone else the monopolistic tech giants might dislike or disagree with.

It's also worth noting that the current US president receives the majority of his positive media coverage from online conservative focused outlets including Infowars (owned by Jones), the Breitbart News Network and the Drudge Report, which make heavy use of social media channels.

The Democratic party would surely appreciate any new opportunity to diminish positive coverage of Republican activities and promote more traditional and (currently) anti-republican media outlets such as the New York Times, The Washington Post, MSNBC and CNN, especially given the upcoming mid-term elections scheduled in November 2018.

To be fair to Trump, the original intent of Section 230 was to guard against censorship before those being censored had a chance to defend their words in a court of law. Since that isn't happening, perhaps the US president is correct to suggest that an update to the current legislation is in order.

Just remember that any new legislation in this area has the potential to completely change the way this blog, and every other online news service functions, even if the end results turn out to be favorable. Given that, we need to learn more.

The second initiative, this one coming out of the EU, has been slightly delayed but is also far further along the path to being legislated into law. It's also far more problematic for news outlets and free speech advocates.

As outlined in the July 5th, 2018 The Verge post, "EU sends controversial internet copyright reforms back to the drawing board," The EU has:
...rejected controversial legislation intended to reform online copyright. 318 MEPs (members of the European parliament) voted against the draft law, compared to 278 in favor. The legislation now returns to the drawing board, before being sent for a second vote in September.
According to The Verge article, the draft law, an expansion of the existing 2001 EU Copyright Directive, was intended: a simple update to copyright for the internet age. But it attracted substantial criticism for the inclusion of two key provisions: Articles 11 and 13. 
The first, Article 11, was a “link tax” that would force online platforms like Facebook and Google to pay news organizations before linking to their stories; while the second, Article 13, proposed an “upload filter” that would have required all content uploaded online to be checked for copyright infringement.
The article noted that the initial vote was a relief to US tech giants, "who would have incurred serious costs to adapt to the ruling. Individual users would also have likely been adversely affected by the law, with some campaigners claiming the proposed “upload filter” would have meant an end to sharing memes, which frequently use copyrighted material."

It would also directly impact the structure and operation of this blog, which uses tools supported by the US tech giants being targeted by the EU legislation (who could reasonably be expected to pass along the new fees to end users in all jurisdictions) and often provides direct links to source materials referenced in posts.

This blog would certainly not be able to afford to pay an online "link tax." Some have argued that the tax is designed to act as a "barrier to entry" to all but the largest and longest established legacy media organizations.

The EU copyright legislation, while delayed, is expected to be updated and reconsidered by the EU in September 2018, but has already begun to directly effect Canadian political discourse.

As outlined in the August 19th, 2018 e-mail to members entitled, "They're trying to censor us," the Vancouver BC based Open Media organization, has accused an unnamed "big corporate publishers in the EU" of originating a "takedown notice" to censor international news relating to Article 11 and Article 13 of the EU copyright legislation.

Open Media Canada is a "non-partisan, non-profit advocacy organization working to encourage open and innovative communication systems within Canada," according to Wikipedia.

The Open Media e-mail references and links to the August 11th, 2018 TF post, "Bizarre DMCA Takedown Requests Censor EU ‘Censorship’ News," and the August 9th, 2018 Electronic Frontier Foundation (EFF) post, "Topple Track Attacks EFF and Others With Outrageous DMCA Notices," to support its claims that online discussions related to Article 11 and 13 are currently being censored in Canada without the formal approval of the legislation by the EU parliment.

The EFF post also discussed efforts to take down online posts from various free-speech advocates, including German MEP Julia Reda, the VP of the Greens–European Free Alliance who has strongly advocated against Article 11 and Article 13 on free speech grounds and seems to want to get her information out to potential opponents of the EU legislation, no matter where they might live.

As outlined in the July 23rd, 2018 Entrepreneur Europe post, "What Is Article 11, and Would It Help Businesses in the EU?," even the EU is more than a little confused over the consequences of Article 11 and Article 13 legislation. Given that, the proposed legislation certainly warrants a second look from both free speech advocates and media outlets of all sizes.

This blog certainly will when it returns with all new stories, beginning September 4th, 2018.
Chuck Black.

Chuck Black is the editor of the Commercial Space blog.

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