A Content Qualification Assessment Procedure
Third-party liability (i.e. ISP liability) is justified when a party may relatively effortlessly redress or prevent harm without exposing itself to disproportionate consequences.
It appears legitimate to prescribe certain legal duties on ISPs in an effort to reinforce the effectiveness of for example counter radicalization policies, protection of human integrity, democracy and society caused by hurtful content.
Any imposition of content regulation duties must however meet the standards set by International Human Rights Law and notably with regard to duties that include active obligations given the corollary of ISP accountability.
Clearly it is not acceptable to expose the private sector to the consequences of government delegation without relief.
If the international community wishes to engage the active assistance of the private sector in protecting its citizens, the very least it can do is to offer efficient remedies against not only legal liability but also commercial and “political” exposure which show no signs of abating.
ISP duties must be predicated upon an operable definition (or at least workable guidance) of the illicit content in question.
In view of the difficulty in some cases of qualifying specific content as illicit and in order to protect freedom of speech to the fullest extent realistically possible a fast track procedure or Content Qualification Assessment should be created. Such a procedure will allow ISPs to obtain an authoritative qualification assessment.
The Content Qualification Assessment Procedure will provide specific remedy and be available to ISPs who by virtue of their accountability and in the interest of free speech should be allowed to obtain immunity pursuant to such a Content Qualification Assessment.
The authority to deliver a Content Qualification Assessment could vest in an Ombudsman Institution appointed in each country by the judiciary or the local Data Protection Agency.
A Content Qualification Assessment would not be treated as a judgement or as an arbitration award. The Assessments would not be legally binding, but provide authoritative guidance on interpretation/qualification.
The ISP would be free to choose to follow or not to follow the Assessment.
Acting in accordance with a Content Qualification Assessment would however relieve the ISP from any future penal or civil sanctions including claims made by authors, editors, publishers, government or any third party relative to the specific content covered by the Assessment.
Later litigation will not suspend the Assessment (i.e. the ISP may continue to rely on the Assessment throughout the litigation process).
Specialized tribunals allowing fast track procedures and the authority to enjoin take down or blocking orders, daily penalties in the case of non-compliance and any other interlocutory measures should also be created.
Injunctions should provide unequivocal instructions to the ISPs and the other parties involved as to the precise steps and scope of the action required (territorial scope as well as DNS, URL or IP blocking identification and inclusion as the case may be of reintroduced content).
Detailed procedural rules covering costs, appointment of members of the Ombudsman Institutions and the steps involved in obtaining a Content Qualification Assessment must be drafted (see the « Proposition de loi » before the French Senate on the creation of an Internet Ombudsman). The Ombudsman Institution could also be combined with an advisory board encouraging users to actively participate in a self-regulatory effort.
A Motion for Recommendation was submitted to the Parliamentary Assembly of the Council of Europe on January 24th 2017 based on above “Proposition de loi”:
Below a link to an interview that the president of AAID, Dan Shefet, gave at the Council of Europe during the session: