Posts about eu

Europe Against the Net

February 24, 2019 by Jeff Jarvis
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I’ve spent a worrisome weekend reading three documents from Europe about regulating the net:

In all this, I see danger for the net and its freedoms posed by corporate protectionism and a rising moral panic about technology. One at a time:

Articles 11 & 13: Protectionism gone mad

Article 11 is the so-called link tax, the bastard son of the German Leistungsschutzrechtor ancillary copyright that publishers tried to use to force Google to pay for snippets. They failed. They’re trying again. Reda, a member of the European Parliament, details the dangers:

Reproducing more than “single words or very short extracts” of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to….

No exceptionsare made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.

European journalists protest that this will serve media corporations, not journalists. Absolutely.

But the danger to free speech, to the public conversation, and to facts and evidence are greater. Journalism and the academe have long depended on the ability to quote — at length — source material to then challenge or expand upon or explain it. This legislation begins to make versions of that act illegal. You’d have to pay a license to a news property to quote it. Nevermind that 99.9 percent of journalism quotes others. The results: Links become blind alleys sending you to god-knows-what dark holes exploited by spammers and conspiracy theories. News sites lose audience and impact (witness how a link tax forced Google News out of Spain). Even bloggers like me could be restricted from quoting others as I did above, killing the web’s magnificent ability to foster conversation with substance.

Why do this? Because publishers think they can use their clout to get legislators to bully the platforms into paying them for their “content,” refusing to come to grips with the fact that the real value now is in the audience the platforms send to the publishers. It is corporate protectionism born of political capital. It is corrupt and corrupting of the net. It is a crime.

Article 13 is roughly Europe’s version of the SOPA/PIPA fight in the U.S.: protectionism on behalf of entertainment media companies. It requires sites where users might post material —isn’t that every interactive site on the net ?— to “preemptively buy licenses for anything that users may possibly upload,” in Reda’s explanation. They will also have to deploy upload filters — which are expensive to operate and notoriously full of false positives — to detect anything that is not licensed. The net: Sites will not allow anyone to post any media that could possibly come from anywhere.

So we won’t be able to quote or adapt. Death to the meme. Yes, there are exceptions for criticism, but as Lawrence Lessig famously said “fair use is the right to hire a lawyer.” This legislation attempts to kill what the net finally brought to society: diverse and open conversation.

Cairncross Review: Protecting journalism as it was

The UK dispatched Dame Frances Cairncross, a former journalist and economist, to review the imperiled state of news and she returned with a long and well-intentioned but out-of-date document. A number of observations:

  • She fails — along with many others — to define quality journalism. “Ultimately, ‘high quality journalism’ is a subjective concept that depends neither solely on the audience nor the news provider. It must be truthful and comprehensive and should ideally — but not necessarily — be edited. You know it when you see it….” (Just like porn, but porn’s easier.) Thus she cannot define the very thing her report strives to defend. A related frustration: She doesn’t very much criticize the state of journalism or the reasons why trust in it is foundering, only noting its fall.
  • I worry greatly about her conclusion that “intervention may be needed to determine what, and how, news is presented online.” So you can’t define quality but you’re going to regulate how platforms present it? Oh, the platforms are trying to understand quality in news. (Disclosure: I’m working on just such a project, funded by but independent of Facebook.) But the solutions are not obvious. Cairncross wants the platforms to have an obligation “to nudge people towards reading news of high quality” and even to impose quotas for quality news on the platforms. Doesn’t that make the platforms the editors? Is that what editors really want? Elsewhere in the report, she argues that “this task is too important to leave entirely to the judgment of commercial entities.” But BBC aside, that is where the task of news lies today: in commercial entities. Bottom line: I worry about *any* government intervention in speech and especially in journalism.
  • She rightly focuses less on national publications and more on the loss of what she calls “public interest news,” which really means local reporting on government. Agreed. She also glances by the paradox that public-interest news “is often of limited interest to the public.” Well, then, I wish she had looked at the problem and opportunity from the perspective of what the net makes possible. Why not start with new standards to require radical transparency of government, making every piece of legislation, every report, every budget public? There have been pioneering projects in the UK to do just that. That would make the task of any journalist more efficient and it would enable collaborative effort by the community: citizens, librarians, teachers, classes…. She wants a government fund to pay for innovations in this arena. Fine, then be truly innovative. She further calls for the creation of an Institute for Public Interest News. Do we need another such organization? Journalism has so many.
  • She explores a VAT tax break for subscriptions to online publications. Sounds OK, but I worry that this would motivate more publications to put up paywalls, which will further redline quality journalism for those who can afford it.
  • She often talked about “the unbalanced relationship between publishers and online platforms.” This assumes that there is some natural balance, some stasis that can be reestablished, as if history should be our only guide. No, life changed with the internet.
  • She recommends that the platforms be required to set out codes of conduct that would be overseen by a regulator “with powers to insist on compliance.” She wants the platforms to commit “not to index more than a certain amount of a publisher’s content without an explicit agreement.” First, robots.txt and such already put that in publishers’ control. Second, Cairncross acknowledges that links from platforms are beneficial. She worries about — but does not define — too much linking. I see a slippery slope to Article 11 (above) and, really, so does Cairncross: “There are grounds for worrying that the implementation of Article 11 in the EU may backfire and restrict access to news.” In her code of conduct, platforms should not impose their ad platforms on publishers — but if publishers want revenue from the platforms they pretty much have to. She wants platforms to give early warnings of changes in algorithms but that will be spammed. She wants transparency of advertising terms (what other industries negotiate in public?).
  • Cairncross complains that “most newspapers have lacked the skills and resources to make good use of data on their readers” and she wants the platforms to share user data with publishers. I agree heartily. This is why I worry that another European regulatory regime — GDPR — makes that nigh unto impossible.
  • She wants a study of the competitive landscape around advertising. Yes, fine. Note, thought, that advertising is becoming less of a force in publishers’ business plans by the day.
  • Good news: She rejects direct state support for journalism because “the effect may be to undermine trust in the press still further, at a time when it needs rebuilding.” She won’t endorse throttling the BBC’s digital efforts just because commercial publishers resent the competition. She sees danger in giving the publishing industry an antitrust exception to negotiate with the platforms (as is also being proposed in the U.S.) because that likely could lead to higher prices. And she thinks government should help publishers adapt by “encouraging the development and distribution of new technologies and business models.” OK, but what publishers and which technologies and models? If we knew which ones would work, we’d already be using them.
  • Finally, I note a subtle paternalism in the report. “The stories people want to read may not always be the ones they ought to read in order to ensure that a democracy can hold its public servants properly to account.” Or the news people need in their lives might not be the news that news organizations are reporting. Also: Poor people — who would be cut off by paywalls — “are not just more likely to have lower levels of literacy than the better-off; their digital skills also tend to be lower.” Class distinctions never end.

It’s not a bad report. It is cautious. But it’s also not visionary, not daring to imagine a new journalism for a new society. That is what is really needed.

The Commons report: Finding fault

The Digital, Culture, Media and Sport Committee is famously the body Mark Zuckerberg refused to testify before. And, boy, are they pissed. Most of this report is an indictment of Facebook on many sins, most notably Cambridge Analytica. For the purposes of this post, about possible regulation, I won’t indulge in further prosecuting or defending the case against Facebook (see my broader critique of the company’s culture here). What interests me in this case is the set of committee recommendations that could have an impact on the net, including our net outside of the UK.

The committee frets — properly — over malicious impact of Brexit. And where did much of the disinformation that led to that disaster come from? From politicians: Nigel Farage, Boris Johnson, et al. This committee, headed by a conservative, makes no mention of colleagues. As with the Cairncross report, why not start at home and ask what government needs to do to improve the state of its contribution to the information ecosystem? A few more notes:

  • Just as Cairncross has trouble defining quality journalism, the Commons committee has trouble defining the harm it sees everywhere on the internet. It puts off that critical and specific task to an upcoming Online Harms white paper from the government. (Will there also be an Online Benefits white paper?) The committee calls for holding social media companies — “which is not necessarily either a ‘platform’ or a ‘publisher’,” the report cryptically says — liable for “content identified as harmful after it has been posted by users.” The committee then goes much farther, threatening not just tech companies but technologists. My emphasis: “If tech companies (including technological engineers involved in creating the software for the companies) are found to have failed to meet their obligations under such a Code [of Ethics], and not acted against the distribution of harmful and illegal content, the independent regulator should have the ability to launch legal proceedings against them, with the prospect of large fines being administered….” Them’s fightin’ words, demonizing not just the technology and the technology company but the technologist.
  • Again and again in reading the committee’s report, I wrote in the margin “China” or “Iran,” wondering how the precedents and tools wished for here could be used by authoritarian regimes to control speech on the net. For example: “There is now an urgent need to establish independent regulation. We believe that a compulsory Code of Ethics should be established, overseen by an independent regulator, setting out what constitutes harmful content.” How — except in the details — does that differ from China deciding what is harmful to the minds of the masses? Do we really believe that a piece of “harmful content” can change the behavior of a citizen for the worse without many other underlying causes? Who knows best for those citizens? The state? Editors? Technologists? Or citizens themselves? The committee notes — with apparent approval — a new French law that “allows judges to order the immediate removal of online articles that they decide constitute disinformation.” All this sounds authoritarian to me and antithetical to the respect and freedom the net gives people.
  • The committee expands the definition of personal data — which, under GDPR, is already ludicrously broad, to include, for example, your IP address. It wants to include “inferred data.” I hate to think what that could do to the discipline of machine learning and artificial intelligence — to the patterns and inferences that will compose patterns discerned and knowledge produced by machines.
  • The committee wants to impose a 2% “digital services tax on UK revenues of big technology companies.” On what basis, besides vendetta against big (American) companies?
  • The Information Commissioner told the committee that “Facebook needs to significantly change its business model and its practices to maintain trust.” How often does government get into the nitty-gritty of companies’ business models? And let’s be clear: The problem with Facebook’s business model — click-based, volume-based, attention-based advertising — is precisely what drove media into the abyss of mistrust. So should the government tell media to change its business model? They wouldn’t dare.
  • The report worries about the “pernicious nature of micro-targeted political adverts” and quotes the Coalition for Reform in Political Advertising recommending that “all factual claims used in political ads be pre-cleared; an existing or new body should have the power to regulate political advertising content.” So government in power would clear the content of ads of challengers? What could possibly go wrong? And micro-targeting of one sort or another is also what enables small communities with specific interests to find each other and organize. Give up your presumptions of the mass.
  • The report argues “there needs to be absolute transparency of online political campaigning.” I agree. Facebook, under pressure, created a searchable database of political ads. I think Facebook should do more and make targeting data public. And I think every — every — other sector of media should match Facebook. Having said that, I still think we need to be careful about setting precedents that might not work so well in countries like, say, Hungry or Turkey, where complete transparency in political advertising and activism could lead to danger for opponents of authoritarian regimes.
  • The committee, like Cairncross, expresses affection for eliminating VAT taxes on digital subscriptions. “This would eliminate the false incentive for news companies against developing more paid-for digital services.” Who said what is the true or false business model? I repeat my concern that government meddling in subscription models could have a deleterious impact on news for the public at large, especially the poor. It would also put more news behind paywalls, with less audience, resulting in less impact from it. (A hidden agenda, perhaps?)
  • “The Government should put pressure on social media companies to publicize any instances of disinformation,” the committee urges. OK. But define “disinformation.” You’ll find it just as challenging as defining “quality news” and “harm.”
  • The committee, like Cairncross, salutes the flag of media literacy. I remain dubious.
  • And the committee, like Cairncross, sometimes reveals its condescension. “Some believe that friction should be reintroduced into the online experience, by both tech companies and by individual users themselves, in order to recognize the need to pause and think before generating or consuming content.” They go so far as to propose that this friction could include “the ability to share a post or a comment, only if the sharer writes about the post; the option to share a post only when it has been read in its entirety.” Oh, for God’s sake: How about politicians pausing and thinking before they speak, creating the hell that is Brexit or Trump?

In the end, I fear all this is hubris: to think that we know what the internet is and what its impact will be before we dare to define and limit the opportunities it presents. I fear the paternalistic unto authoritarian worldview that those with power know better than those without. I fear the unintended — and intended — consequences of all this regulation and protectionism. I trust the public to figure it out eventually. We figured out printing and steam power and the telegraph and radio and television. We will figure out the internet if given half a chance.

And I didn’t even begin to examine what they’re up to in Australia…

Privacy and speech

February 10, 2012 by Jeff Jarvis
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Two notable decisions in Europe reflect the tension between privacy and free speech.

The European Court of Human Rights came down on the side of press freedom — thus speech — when it ruled in favor of media reporting on public figures. And a Dutch German court ruled that journalists had a right to interview a Nazi murderer with hidden cameras.

This tension is addressed but only glancingly in the EU’s proposed rules on privacy, which create vague carve-outs for journalism, history, and scientific research.

What none of this acknowledges at a more fundamental level the right we have to talk about someone else (with carve-outs for libel and slander already in the law) — not just the press and not just public figures. If you tell me I must forget you and erase what I have said about you, then you affect my speech. If you reveal something to me and I interact with that information and then you claim the right to pull back your information, then we must debate about who has rights to the results of our interaction (whether that is a conversation or a transaction).

Privacy isn’t as simple as some of its advocates would lead us to believe. It is interweaved with other rights and interactions.

I’ve been studying the full proposed EU privacy regulations and now I’m going through ancillary documents. I’ll be writing more about this soon.

Public Parts on Reding’s four pillars

January 23, 2012 by Jeff Jarvis
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Since European Commission VP Viviane Reding’s proposal for internet regulation — under her four pillars — are the topic of discussion this week at DLD in Munich and in Europe, here is what I wrote about them in Public Parts:

* * *

I fear the unintended consequences that may come from regulation. Take, for example, European Union Justice Commissioner Viviane Reding’s four pillars of data protection, which she proposed in 2011. I have no argument with one of them: transparency. Companies that collect data should be open about when that is done and how information will be used.

Another pillar sounds attractive: “the right to be forgotten.” But how far does that go? If I post something about you on my blog or write about you in a news story—a quote I heard, the fact that I saw you somewhere, the fact that you did something in the open—can I be forced to erase—to forget—that? What then of my freedom of speech?

Another pillar is rhetorically appealing: “privacy by default.” But is that how we wish society to operate—closing in by reflex when we have so many new ways to open up? Flickr became a success, as I said earlier, because it was set to public by default. On a service designed for ­sharing—Facebook—what does complete privacy mean? Isn’t completely closed communication just email?

Reding’s last pillar would require EU-level protection no matter where a service operates or where data are held. That sets a dangerous precedent. It could mean that we would all be ruled by the most stringent controls in place anywhere in the world—the high-water mark of control. Can we bear China claiming the same right as the EU? We see a related problem today with so-called libel tourism in the U.K. Because its libel laws are unfriendly to defendants, targets of published criticism go there to file suit against writers and publishers. In a global internet, the EU’s effort to become privacy’s sanctum could affect us all.

On the one hand, I argue against regulation. On the other hand, I argue that the government should enforce net neutrality, and that is a form of regulation. Am I hypocritical? At South by Southwest in 2011, Senator Al Franken delivered a ringing endorsement of net neutrality. He argued that proponents of net neutrality are not trying to change the internet but to keep corporations from changing it, from making the net less free than it has been since its birth. “This is a First Amendment issue,” he said. “The internet is small-d democratic. Everyone has the same say.”

Secretary of State Hillary Clinton, too, delivered a rousing defense of internet freedom in two speeches in 2010 and 2011. “In the last year, we’ve seen a spike in threats to the free flow of information. China, Tunisia, and Uzbekistan have stepped up their censorship of the internet,” she said in Washington just as the Tunisian revolt was brewing. “On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas…. The internet is a network that magnifies the power and potential of all others. And that’s why we believe it’s critical that its users are assured certain basic freedoms. Freedom of expression is first among them.”

The following year, in 2011, she delivered another speech extolling transparency and attacking censorship. But in the same speech, she also condemned WikiLeaks for its release of cables from her agency. “Let’s be clear,” she said, “this disclosure is not just an attack on America—it’s an attack on the international community.” The leaks “tear at the fabric” of government, she argued. Indeed, they soon tore at the fabric of Tunisia’s corrupt government.

Lock up the kids, here comes the EU

November 30, 2010 by Jeff Jarvis
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If you want a sign that Google is past its prime, you got it today: The EU is investigating it for antitrust.

Remember Microsoft: The EU took 11 years investigating it — during which time, the web was born — and by the time it finished in 2004 and brought its mighty hand down upon the mighty Microsoft, the market had already done the job, thank you. Microsoft was a has-been, a joke as a monoplist, a laggard legacy company left behind by new technology, a threat to no one but itself.

Now the EU is going after Google. No surprise. One thing that has surprised me lately is the anti-Googlism (read: anti-Americanism, anti-capitalism) I’ve seen reflected in the nasty rhetoric over Google’s Street View. In my trips to Germany and talks there, I regularly heard that Google is too big (can someone please send me to the statute that defines big and thus too big?) — not too big to fail but too big to live in Europe. I’ve also heard people say they don’t want Google making money on them (but it’s OK for the corner store or the local newspaper to?).

Now the crows come home to roost with this EU investigation. But as Danny Sullivan argues in a wonderfully smart-assed and logical post, the EU is going after this search engine for acting like a search engine. When he searches for cars, Google has the audacity not to point to other search engines. It points to car sites! Bad Google, Bad.

And what if Google does point to its own businesses: YouTube, shopping comparison, Gmail, whatever. That’s business. Yahoo points to Yahoo; I’ve sat in meeting with them back in the early days of the web when they bragged about how they could point their “firehose” at their own stuff. The New York Times points to The New York Times. Microsoft links to Microsoft. So?

Remember that it was Google that created the ethic of search results untainted by business. Its model before that was GoTo/Overture, which *sold* search position. Analysts thought they were nuts — Commies, maybe — when Google decided *not* to tell search position out of some strange sense of ethics.

So now the EU wants to take Google’s own standard and interpret it against Google? Where the hell does this?

Last night, someone said to me something I also hear a lot: that search is a utility and utilities need to be regulated. Europeans reflexively regulate.

But Google isn’t a utility. There are plenty of other, competitive search engines. The fact that Google has 90+% penetration in Europe is the choice of the market, nothing Google did through unfair advantage.

And — shades of the Microsoft case — Google is being challenged now by other means of discovery: namely us sharing links through social means. Google is no longer the all-powerful Oz of the internet. The EU’s timing is impecable.

Now there is one arena in which Google does have much power: advertising. It’s not as effective to market on Bing as it is on Google. And I’ve said before — just yesterday — that I think Google would be wise to establish a Constitution and Bill of Rights and channel of appeal of its decision on advertisers so it cannot be accused of manipulating things behind the scenes through its sole power.

In that sense, Google is not a utility. It is law. And laws require principles and means of appeal. That’s what I said yesterday and what I’ll argue again in this case. Google would be wise to be more transparent about its advertising rules and decisions (not its algorithms but its judgments) and open up that process to trusted outsiders. Google needs a court.

But now the EU is looking to take them to court. Oh, boy.

The open EU

October 5, 2009 by Jeff Jarvis
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I got email this morning from someone getting ready to present to the European Parliament on the changes in journalism from their perspective. He said: “Given the shift to hyper-local journalism, being a supra-national body seems to be a problem. It is a particular problem for the EP in that it strives for relevance and to make its voice heard.” What should their strategy be? Here was my answer:

Unsurprisingly, my response starts with transparency: all the actions and information of government must be online, searchable, linkable, in a form that can be shared and analyzed.

I argue for this not just because of a will to catch the bastards with no end of citizen watchdogs (not, perhaps, the best selling point from your side of the discussion now – though transparency is an important element in the new, post-institutional ecosystem of news). I argue that it is in government’s own enlightened self-interest to have everything out there because, thanks to the link, source material – whether from government or from companies or from witnesses to news – will become part of news coverage; we will link to information at its source and we will expect it to be there.

It is also in government’s interest to have Googlejuice (dare I bring up a large American brand to the EU?); it will want to be discovered when citizens search for information. Indeed, search will be the primary means of contact between citizens and government. That is the case when citizens initiate the contact.

When government wants to make contact – when it wants to disseminate information or, god help us, messages out to the people – it soon will no longer be able to rely on mass media and the press to do that. It will have to rely on the citizenry, on people spreading that word, but only if it’s worthy, only if they care to. Government can establish a Twitter account, yes, but its tweets won’t be retweeted unless fellow Twitterers care to, unless that message is relevant and useful to them. And in a transparent government, it may not be up to government to decide what messages are spread; it will be up to the citizen-users.

Having said that, it is still vital for government – its politicians and its agencies’ bureaucrats alike – to establish these connections using the social tools of online. The internet itself is a social tool; it is not a medium but a connection machine. So just as one wants Googlejuice for search, one wants relationships for the social web.

Here’s the hard part. I argue that in a post-industrial economy and society, when process overtakes the end-product, we customers, citizens, users expect to be included in the creation of products and decisions, which means we expect them to be opened up before they are done. This is why Google (there, I did it again) releases products as betas; it is necessarily an invitation to collaborate – as well as a statement of humility and humanity: ‘This thing is unfinished. It’s imperfect. Help us finish it.’

We need beta government. When I’ve spoken with government people, they confess a phobia of failure. Yet without the opportunity to fail, government – like industry and media – cannot experiment and thus innovate. We must give government the license to fail. That is difficult, especially because it is the citizenry that must grant that permission. I think government must begin to recast its relationship by opening up pilot procts to input and discussion, to smart ideas and improvements. I’m not suggesting for a second that every decision be turned into a vote, that law become a wiki. Government still exercises its responsibility. But it needs to use the new mechanisms of the web to hear those ideas. I would look for examples to Dell’s Ideastorm, Starbucks’ My Starbucks Idea, and Best Buy’s Idea Exchange.

Finally to your question about local v. national and extra-national: I wouldn’t worry greatly. In the U.S., we didn’t have national media until TV networks reached critical mass and we didn’t have a quality national news brand until satellites enabled The New York Times (not to mention USA Today) to transmit pages to remote printing plants. Most of the journalistic resource in the U.S. has been spent locally, most of it by the monopolies that are now dying. In Europe, local newspapers are in the same sinking ship and, as in the U.S, I believe there are opportunities in local (in our work on new business models for news at CUNY – at newsinnovation.com – we forecast a robust and sustainable local ecosystem for news).

But in Europe, unlike the U.S., each nation has long had and still has strong and competitive national news markets. I think that will continue. Indeed, where languages cross borders, there are new opportunities to grow internationally; look at the Guardian, which exploded online and gets two-thirds of its audience from outside the UK. I believe that strong national news brands – some of them new, perhaps – will be supported in Europe because the the public is so accustomed to having them and without production and distribution costs and the need to reproduce commodity information and content (‘do what you do best and link to the rest’) they can find new efficiency.

Still, as you say, that should not lull government into thinking it can continue, business as usual, working through those national brands, for many citizens will go around them – or rather, will go to them only when brought there by a link through search or aggregation or peers. As a college student famously told a researcher in The New York Times a year ago, “if the news is that important, it will find me.” Marissa Mayer and Eric Scmidt of Google (there I go again) is talking now not about hyperlocal but about “hyperpersonal news streams.” Now return to the start of this discussion: This is why government must have connections with people, so its information can insinuate itself into the web and their lives and – here, at last, is the real point – so government, especially such a supra-national body, is not remote from the needs and lives of its citizens but is, instead, in constant conversation with them.