ORG policy update/2015-w25

This is ORG's Policy Update for the week beginning 12/06/2015

If you are reading this online, you can also subscribe to the email version.

National Developments

Government departments automatically deletes emails despite possible Freedom of Information requests

An anonymous government insider has revealed that since 2004, before the passing of the Freedom of Information Act (FOI), Downing Street adopted a policy of automatically deleting emails more than three months old, unless they are actively saved. The same source asserts that many government departments have similar policies, although not necessarily with the same time limit.

While deleting emails is not illegal as long as they are not subject to a current FOI request, campaigners for transparency and accountability have reacted strongly to those revelations. The director of the UK Campaign for Freedom of Information pointed out that the timing of this policy “was not a coincidence”, and the Alliance for Lobbying Transparency described the practice as “dodgy” and “against the principle of freedom of information”, as it deletes records that should be in the public domain.

European Union

Report on Copyright voted in Parliament Committee

The European Commission is expected to propose a reform of European copyright laws this autumn. The European Parliament is already outlining its position on the matter with the drafting of a report evaluating the 2001 Directive on the harmonisation of copyright. This so-called “Reda report”, named after the Pirate Party MEP Julia Reda who drafted it, has attracted a lot of criticism and received more than 500 amendments. In spite of this, the legal committee of the Parliament managed to reach an agreement and voted for the report with a large majority on Tuesday, June 16th.

In its amended form, the report recommends that the Commission considers exception in order to make it easier for libraries to lend digital documents, to help scientists data mine articles and texts, and to help blind and visually impaired people to access books. The report also recommends the implementation of a “freedom of panorama”, allowing citizens to photograph anything in the public space, although the use of such pictures for commercial use should require authorisation from the rightholder. This example demonstrates that the recommendations sometimes do not go as far as existing provisions in most Member States, and that it lost some of its most innovative propositions, such as copyright exemption for parody or quotation. Still, Julia Reda described this vote as a “turning point” towards simpler and more user-oriented copyright rules.

The plenary vote on the report will take place in July, 9th.

European Council adopts a position on Data Protection

The European Council reached a long-awaited position on the data protection reforms package, which aims at replacing and updating the 1995 Data Retention Directive, and which was first presented by the European Commission in January 2012. As the European Parliament adopted its position in March 2014, the “trialogue” between the institutions can now begin, and is expected to end in December.

While the position of the Parliament was hailed by digital rights campaigners as a crucial step towards better, more harmonised and well-enforced data protection rules, the position of the Council has been poorly received. Privacy International and European Digital Rights (EDRi) criticised the text as unclear and full of exceptions, “to the point of meaninglessness”, putting in jeopardy Europe's “world leading approach to data protection and privacy”. For instance, the text wants to allow the processing of data in ways that the user hasn't agreed to, provided that the company has a “legitimate interest” in it, but it doesn't define the scope of what “legitimate interests” would be.

The Council itself remains divided, and as its position is very different from those of the Commission and the Parliament, and given the extraordinary pressure of lobby groups on this regulation, reaching a compromise could take time. Jan Albrecht, who will lead the EU Parliament's negotiations, already warned that the Parliament won't settle for a text providing less protection than the 1995 Directive.

International Developments

Sunday Times' claim that Snowden has “blood on his hands” encouters strong rebuttal

On Sunday, June 14th, the Sunday Times quoted anonymous sources from Downing Street and the Home Office stating that China and Russia has put their hands on a large part of the sensitive documents that whistleblower Edward Snowden took from the National Security Agency in 2013. As a result, one of the source says that Snowden has “blood on his hands” and has made Western spies vulnerable targets for Russia and China.

However, the article has been the subject of harsh criticisms, and its content questioned. David Davis MP, a Conservative MP and a strong advocate for privacy, has questioned the timing of this revelation, which comes only three days after the publication of the report on surveillance and counter-terrorism. This report endorsed mass surveillance but denounced the complexity of the legal framework as “undemocratic [and] intolerable”. Craig Murray, a senior British diplomat, described the Sunday Times' claims as “nonsense”, given that the files Snowden had in his possession would never contain informations allowing to identify an agent. Finally, Glenn Greenwald, one of the journalists leading the covering of the leaks of those documents, called the article “journalism at his worst”. He points out a glaring inaccuracy, easily checkable : while the Sunday Times wrote that his girlfriend has met Snowden in Moscow, she in fact met Laura Poitras, who was doing a documentary on the whistleblower, in Berlin.

In an interview with CNN, Tom Harper, the Sunday Times journalist who wrote the article, admitted that the basis of the story was “the official position of the British government”.

Legal Cases

Belgian Data Protection authority sues Facebook over anti-privacy practices

The CPVP, the Belgian privacy commissioner, is taking Facebook to Court for practices that allegedly violate both Belgian and European privacy laws. The CPVP had warned Facebook in March 2015 that it would face legal action if it didn't abandon the practices pointed out by a report the CPVP commissioned. This report evidenced that Facebook was tracking the activity of its users on third-party websites unless they opted out, thanks to the “Like” and “Share” buttons. The European Data protection authorities had already made it clear that this kind of information processing needs active opt-in. Furthermore, the report disclosed that those buttons allowed Facebook to track Internet users who were disconnected from the social network, and even those who only visited the website but were not part of Facebook.

After the warning in March, Facebook indicated its will to start a dialogue, but reminded that its referent data protection authority is the Irish one, as its European headquarters are in Ireland.

Aside from this lawsuit, Facebook is under threat of a pan-European investigation initiated by Belgium, Germany and the Netherlands.

European Court of Human Rights rules that websites are responsible for the comments posted on them

The European Court of Human Rights ruled on Tuesday, June 16th, that commercially-run Internet news portal liable for offensive comments posted by their readers. The original case involved Estonian news website Delfi, which wrote an article about a company called SLK. The article received comments that included death threats to the head of SLK. Even though Delfi abided by ‘notice and takedown’ rules and removed the comments, SLK sued and won. Delfi appealed arguing that the judgement was hampering its right to freedom of speech.

The ruling took a lot of commentators and civil organisations by surprise. T J McIntyre, Chairman of Digital Rights Ireland, argued that this ruling “ may be influential in further development of the law in a way which undermines freedom of expression”, even though it is unclear how the judgment will play with existing European Union laws. Indeed, the Court of Justice of the European Union ruled three years ago that forcing a hosting service to monitor and filter online content was unlawful. Despite this uncertainty, McIntyre fears a “chilling effect where sites are over cautious in taking down material which might possibly be contentious”.

ORG Media coverage

See ORG Press Coverage for full details.

2015-06-17 – Express - What are they hiding? Government accused of 'shady practice' over rule that deletes emails
Author: Tom Batchelor
Summary: Pam Cowburn quoted on the automatic deletion of emails in government departments

2015-06-15 – The Guardian - The Internet is the answer to all the questions of our time
Author: Cory Doctorow
Summary: Doctorow cites ORG as an example of NGOs that have won battle for freedom on the Internet

2015-06-15 – The Telegraph - How we all became obsessed with online privacy
Author: Jamie Bartlett
Summary: ORG cited as one of the NGO defending privacy on the Internet

2015-06-15 – Open Democracy - Who is the subject of Digital rights?
Author: Engin Isin & Evelyn Ruppert
Summary: ORG cited as one of the NGO dedicated to defending digital rights

ORG contact details

Staff page