[bestbits] New EFF project on Shadow Regulation with "dummies guide" infographic on multi-stakeholder model

Daphne Keller daphnek at law.stanford.edu
Fri Sep 30 18:46:18 EDT 2016

This is such a great project - thank you, Jeremy and EFF.

There is a lot of interesting material at the juncture of "private
agreements" and state action. Several current EU proposals could fall in
this bucket.  The Code of Conduct is one big example, the Audio-Visual
Media Services draft directive
another. I see shades of this in the Copyright Directive as well. The
common pattern is government actors pressuring private platforms to
"voluntarily" go beyond legal obligations in order to remove content.

The government-initiated agreements are intriguing as a litigation matter,
since it is easier to formulate a claim where state actors are in the
mix. There are some pretty strong statements against these agreements in
the Council of Europe Blocking report
from last spring. Pasting a few below. And in the US there is Dart v

Annemarie Bridy has some good scholarship digging into the terms of some
purely private agreements in the US copyright context.  However bad the US
Copyright Alert System is, the others she's looked at would seem to be
worse in terms of due process for alleged infringers.


- - -

Pasting - there is more interesting material in the report but the PDF
doesn't copy/paste well for some reason.

In respect of this problem, the Committee of Ministers formulated
recommendations in 2011:

The companies concerned are not immune to undue interference; their
decisions sometimes stem from direct political pressure or from politically
motivated economic compulsion, invoking justification on the basis of
compliance with their terms of service.


Therefore, a blocking system based exclusively on self-regulation or
􀍚voluntary agreements􀍛 risks to amount to a non-legitimate interference
with fundamental rights.


In addition, there is the question whether governments that encourage (or
even just allow) such systems can claim not to be responsible for them, or
for the restrictions on information that are the practical results of the
systems, simply because those systems are not underpinned by law. In terms
of international human rights law, states are responsible if, within their
jurisdiction, there are systems in place that effectively restrict the
freedom to seek, receive and impart information and ideas regardless of
borders for most of its inhabitants.

On Fri, Sep 30, 2016 at 3:05 PM, Jeremy Malcolm <jmalcolm at eff.org> wrote:

> Some of you may find this interesting.  Most people don't understand
> what multi-stakeholder processes are meant to achieve, because the
> phrase "multi-stakeholder" is misused so much and because there is so
> much variation between purportedly multi-stakeholder processes.
> At the Best Bits meeting last year, I presented a paper that I'd written
> which attempted to define a normative ideal of multi-stakeholderism
> based on a set of simple criteria.[0]  But even that paper wasn't simple
> enough that ordinary people would read it, so I've distilled it still
> further and filtered it through EFF and here is the result:
> https://www.eff.org/deeplinks/2016/09/fair-processes-better-outcomes
> We'll now be using this to critique processes that don't come up to
> snuff, and we hope that others may adopt and use the infographic too.
> Comments welcome.
> [0]
> https://policyreview.info/articles/analysis/criteria-
> meaningful-stakeholder-inclusion-internet-governance
> --
> Jeremy Malcolm
> Senior Global Policy Analyst
> Electronic Frontier Foundation
> https://eff.org
> jmalcolm at eff.org
> Tel: 415.436.9333 ext 161
> :: Defending Your Rights in the Digital World ::
> Public key: https://www.eff.org/files/2014/10/09/key_jmalcolm.txt
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Daphne Keller
Director, Intermediary Liability
Center for Internet and Society
Stanford Law School
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