The EU has in recent years used trade agreements as a venue for promoting human rights, notably freedom of speech. Yet, as trade negotiators seek to wrap up the Trade in Services Agreement (TiSA), the EU seems to have abandoned this objective, write Jodie Ginsberg and Christian Borggreen.
Jodie Ginsberg is CEO of Index on Censorship and Christian Borggreen is the director of CCIA Europe.
The European Union has repeatedly heralded trade agreements as an opportunity to promote human rights. The EU’s recent “Trade For All” strategy reiterated that: “The EU Treaties demand that the EU promote its values … and respect for human rights, around the world.”
In the Internet era, one of the most frequently exercised human rights is free expression. But exercising this right requires online services. Within the EU, the e-Commerce Directive has for over fifteen years afforded internet intermediaries strong protection from liability for third party content and communications.
This model works because intermediaries can host interactions without being held liable for the vast amounts of user content generated during these interactions. The alternative model, which is present in several countries that lack the EU’s human rights tradition, is to force intermediaries to determine what is or is not lawful on their own without notice — with obvious risks to over-take-down, online censorship, and user privacy.
Europe’s safeguards for intermediaries have enabled a flourishing European internet economy and promoted users’ rights to freedom of expression, freedom of association, and privacy, while enabling the launch of many European telecommunications and content services.
For these reasons, the EU has promoted strong protections for online intermediaries in its recent trade agreements, e.g. in the EU-South Korea free trade agreement.
Starting today, trade negotiators from the EU, the US and 21 other countries will meet as part of the 21st Trade in Services Agreement (TiSA) negotiation round. The ambition is to finalise this trade agreement by end of the year.
Some TiSA countries, such as Pakistan and Turkey, have a poor track record when it comes to online freedoms. In fact, some of these countries, and many countries that may later join TiSA, such as China, are taking steps to increase the collateral censorship of communications between users, by imposing liability on the intermediaries that facilitate these communications.
TiSA is therefore an historic opportunity for the EU to “promote its values” and “advancement of human rights in third countries”, as per its stated policies.
Disappointingly, the EU has, unlike the US, not put forward a proposal on intermediary liability protections. In fact, the European Commission is said to argue that potential civil society opposition is a reason not to introduce these protections in TiSA.
However, many civil society and intergovernmental organisations support clear limitations on liability for third-party content, as recognised in numerous statements, such as the “Manila Principles” and the UN/OSCE/OAS/ACHPR Joint Declaration on Freedom of Expression and the Internet.
The Commission seems to have forgotten that civil society organisations opposed the ACTA trade agreement, in part because of fears of intellectual property becoming a pretext for online censorship. But intellectual property is outside the scope of TiSA. This is why the EU can and should put forward a clear limitation on intermediary liability in TiSA.
The only logical rationale for the EU to abandon protections of online intermediaries is the EU’s own disastrous copyright proposal. Through this proposal, special interests have been calling for a weakening of protections for online intermediaries, through mandated content filtering technologies and neighbouring rights for publishers.
This proposal negatively impacts online freedoms such as freedom of expression and freedom to access information. It also poses risks related to online surveillance and undermines media pluralism.
Fortunately there is still time and it is possible that the Commission is merely taking its time to present a strong TiSA provision for the protection of online intermediary protections. This is a historic opportunity for the EU to advance human rights in third countries.