A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Tuesday, January 29, 2013

No Bieber in Berlin: Impressive app shows that two thirds of YouTube's most popular clips are blocked in Germany: a human rights issue?

Today, I embed a very impressive app by OpenDataCity that shows which of the 1000 most viewed YouTube clips can be seen in Germany. 

It is a very unimpressive 385. Of 1000.

61,5 % of the world's top 100 YouTube videos cannot be seen from a German IP address because of an unresolved conflict between Gema, the German agency responsible for managing intellectual property rights for artists. 

The reason for this very high number of blocked videos is that Gema asks for 0,00375 Euro per click (which is, by the way, much less than the 0,1 Euro that the Styrian butcher wanted for clicks on videos inspired by him.) YouTube (i.e. Google, Inc.) has refused to settle on this number and chooses not to offer the videos to visitors identifiably from Germany as part of a strategy of legal risk avoidance.

So it's not the German government blocking the videos, it is YouTube not offering them for fears of legal proceedings by Gema.

Other countries used as a comparison are South Sudan (15,3% of YouTube's 1000 most popular videos blocked), France (1,0 %), Switzerland (1,2 %), Vatikan (5,1 %), Spain (0,6 %), Austria (1,1%) and Afghanistan (4,4%). 

Have a look at the app. You can find my analysis below if you can resist the temptation to have a look at some of the 1000 videos ... .

Supported by MyVideo. Made by OpenDataCity. This App is under CC-BY 3.0.

Now, of course this does not mean that Germany should be added to the list of 

Freedom House's "Freedom on the Net 2012" survey confirmes that the bad score of Germany on what can be called 'YouTube 1000 most popular video index' must not be confounded with a restrictive approach to Internet freedom per se. 

Germany ranks 3rd of the countries surveyed in terms of Internet freedom with 15 of 100 points (0 being most free).

The influence of restrictive intellectual property rights regimes on Internet freedom is limited. The US (with 0,9% of the videos blocked) reaches only 12 of 100 points (with 0 being "most free") on the Freedom House scale, while the UK (with 0,8% videos blocked) an less impressive 25 of 100 points . 

Rather, it should provoke a debate on how to protect intellectual property rights and while ensuring the right to access to cultural heritage and and to all forms of articstic self-actualization worldwide thorugh the techonlogy of one's choosing. 

And it should make Gema and Google reconsider finding a sustainable solution.

The debate should, however, not confuse the important fight against Internet censorship. The argument that YouTube's choice not to provide videos because of intellectual property concerns is the same, on a human rights level, as the enforced blocking of videos by states, cannot hold water. 

Of course, German users circumvent the blockage by using VPNs, as this article for the German "Zeit" weekly illustrates. It was published, proably by coincidence, just yesterday.

Wednesday, January 23, 2013

"Shut up" Affair Highlights Challenges to Privacy and Freedom of Expression Online

Screenshot from the song "Kohlhauserby König Leopold (c) YouTube


"Holt die Goschn" is Eastern Styrian (an Austrian dialect) for "shut up". Three months ago, the Vienna-based band "König Leopold" pulished a song based largely on a mash-up of comments, spoken by band members, that made by a real butcher, Mr. Kohlhauser, from a small village in Eastern Styria.

The song, "Kohlhauser", is available on YouTube and has only recently caused "troubels" when Mr. Kohlhauser (who apprently lives in the same village as the grandmother of a band member) engaged a lawyer to sue for 10 cents for each YouTube view of the video. 

He felt that his proivacy had been violated and indeed what the band has done is not unproblematic. Of course, they have the right to take inspiration for their artistic products from what they see and perceive (and one assumes that they heard Mr. Kohlhauser say, inter alia, "Holt die Goschn" during a visit at this butcher shop). Yet the band says now that the "Kohlhauser" in the song is a fictional character. 

That argument won't really wash because it is an identifiable person. Yet the whole affair showcasts again the challenges of ensuring human rights protection online. 

I've given an interview on this subject to the Austrian Press Agency (APA) and two quality journals have since picked up the story. You can read it in Der Standard [in German] and in Die Presse [in German].

My key points: 

Using a person who is not a person of public interest in an identifiable way in a song without getting their consent is problematic as it violates their privacy. This is distinct from the question whether there should be consequences under penal law for the authors of the song. 

Austrian media law does provide for the possiblity of penalties, but the treatment of youTube videos for the purposes of media law is not yet clearly ajduciated. 

What the case shows, however, is that anyone who has had information about them published online has to be very careful and how they go about the fight against that information. Don't freed the trolls! Don't start a legal fight against a largely unknown band. If Mr. Kohlhauser hadn't engaged a lawyer and started to talk about suing the band, the Austrian media would not have reported on that story. The video was already uploaded three months ago. What benefit can there be for Mr. Kohlhauser? He has started a low-key "shitstorm".

It is different, however, when it comes to undoubtedly illegal pictures, including non-consensually published nude pictures. Then, the server administrator should be immediately contacted, lawyers should be engaged, the police should be notified. 

What the story also shows is that we need to raise awareness regarding the limits of protected speech online and the balance to be struck between artistic freedom and privacy protection.

Wednesday, January 16, 2013

Internet content regulation and freedom of expression: three questions legislators should consider

Internet content regulators should take care: Not
everything that lookslike hate speech, is hate speech.
I am currently busy co-authoring a book for the Council of Europe on freedom of epxression on the Internet. In the process of preparing the materials I was amazed by how many documents we have by now expressly pointing out the importance of freedom of expression online. 

A very informative list can be found in what is probably the most important judgment on freedom of expression on the Internet we've yet seen by an international court: the European Court of Human RIghts's decision in Yildirim v. Turkey, §§19 et seq. (You can find a very good analysis here at the UK Human Rights Blog).

The Court chided Turkey for allowing an interference that does not meet the 
"requirement of foreseeability required by the Convention and did not allow the applicant to enjoy the sufficient degree of protection required by the rule of law in a democratic society. Moreover, this law appears to be directly contrary to the wording of paragraph 1 of Article 10 of the Convention, that the rights recognized therein apply “regardless of frontiers”(§ 67; Einglish translaten by UK Human Rights Blog)
States thus have a duty not ensure freedom of expression online just as offline. 

But legistic shortcomings are representative of a larger phenomenon. Some states have issues with developing a coherent framework of laws applicable to the Internet and or of refining existing laws to extend to the Internet. Such a duty has  been explicitly confirmed by the ECtHR in Editorial Board of Pravoye Delo and Shtekel v. Ukraine (in this case: extension of protection of journalists offline to online publications).

This made me think of an article I wrote in 2011 on the three key questions each legislator must ask when it comes to normative action in the Internet age. It's published in the collection of the 14th International Symposium on Legal Informatics, Salzburg, but I will republish my main arguments here:

  • First, legislators have to consider whether to regulate or not. It is always difficult to pinpoint exactly when a social situation demands legal norms and up to when social norms are enough. If a state introduces too strict a rule too early in time this might hamper technological development. Then again, not ruling at all might lead to sectoral anarchy and human rights violations. 
  • Second, legislators need to decide which entity should regulate. Often the self-regulatory powers of stakeholders will be enough but sometimes governments as the traditional rule-making authority come into play. 
  • Third, the technical question of how to regulate needs to be answered. Depending on the normative goal, the normative and technological means will differ. 
The example of regulating hate speech is a good case in point. 

First, a state has to consider whether to fight (certain) online hate speech or allow it. International law helps answer that question as it sets down certain standards that all states must obey, such as the prohibition of incitement to genocide. But with regard to other hate speech, such as negationism, a country with a different historical from, say, Germany, may decide not to penalize holocaust denial. Some states, such as France or Switzerland, may also decide to penalize denial of other genocides will other states consider these denials covered by freedom of expression. 

On the second level, states have to consider which actor is best suited to implement the prohibition of hate speech. States may consider censorship by Internet Service Providers, relying on unofficial but widely circulated blacklists established by non-governmental organizations to be must effective or their own criminal law or a combination of both. 

On the third level, may also consider whether it makes more sense to blacklist sites or to have servers physically remove them. In assessing the different approaches states have to keep in mind that they should always choose the least invasive regulatory alternative to fight hate speech.

Taking this into account will help legislators decide whether to regulate or not, who to empower with regulatiory attempts and how to regulate.