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The European Parliament recently took the final vote on the new Audiovisual Media Services Directive (AVMSD). The text, which can be considered final, now awaits only the formal approval of the Council.
The AVMSD will become the first legally binding instrument to impose new, and extensive, responsibilities for content regulation on privately owned Internet platforms. They are required to establish and apply detailed rules in areas such as hate speech, child pornography, protection of children’s development and preventing terrorism. While platforms must define and enforce these rules through nominally private Terms of Service agreements with users, the AVMSD makes platforms function as de facto arms-length State law enforcement systems. The performance of online platforms in these areas will be supervised, according to the recently adopted text, by public media regulatory bodies, who can penalize platforms if their performance is considered to be inadequate. The AVMSD has come a long way since the adoption of what was known in 1989 as the Television without Frontiers Directive. Almost twenty years later, in 2007, the Directive’s scope was expanded significantly to cover audiovisual services beyond traditional “linear” television, in particular so-called video-on-demand services. A base principle of its rules (both old and new ones) is the idea of editorial responsibility as one of the main criteria for classifying a service as a regulated media activity.
The notion of editorial responsibility already triggered some degree of legal uncertainty when the AVMSD was incorporated into the member States’ media legal systems. While in the field of traditional television such notion has always been clear, in the case of on demand audiovisual service providers it would encompass the assumption of direct, ex ante, responsibility for choosing the videos offered in their respective catalogue.
This piece is exerpted from the Law, Borders, and Speech Conference, where it appears as an appendix. The terminology it explains is relevant for Intermediary Liability and content regulation issues generally - not only issues that arise in the jurisdiction or conflict-of-law context. The full conference Proceedings Volume contains other relevant resources, and is Creative Commons licensed. Conversations about unlawful online content and the responsibilities of Internet intermediaries have become more heated in recent years.
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Participants in these discussions often lack common terminology or understanding of technological options for online content control. This problem is not entirely new—there has never been a single agreed set of terms, and people have often used the same terms to mean different things. But miscommunications become more consequential as governments expand legal mandates for intermediaries.
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Different blocking technologies lead to different outcomes, which can include under-blocking unlawful content, over-blocking lawful content, or disrupting service to users. They can also place different burdens on intermediaries, and make it easier or harder for users to circumvent the blocks or for researchers to detect them. This document briefly lists key terms as the author has seen them most commonly used. It also lists common sources of confusion. Common Terms Intermediaries: Entities that “give access to, host, transmit and index content originated by third parties or provide Internet-based services to third parties.” There are many kinds of intermediaries, but for purposes of content blocking or removal they can generally be clustered into two groups with different capabilities.
Network intermediaries, which provide technological connections between two endpoints, can sever that connection. (Examples: ISPs, mobile carriers, content delivery networks, and DNS providers.). Hosting intermediaries, which store user content on their servers, can remove content or restrict access to it. (Examples: consumer-facing hosts such as Facebook, back-end hosting providers such as Amazon Web Services.) Content Providers: “Those individuals or organizations who are responsible for producing information in the first place and posting it online.” Remove or take down: To erase or restrict access to online content, in whole or in part. Block: To prevent a user from accessing content, without taking the content itself offline.
Variations in the blocking target: Sometimes intermediaries block particular content (like when an ISP stops all its users from going to a website or using an app). Sometimes they block particular users (like when a website blocks all users with IP addresses from a certain country). Sometimes they do both at once (like when Twitter prevents users in a particular country from seeing a particular tweet—which they call withholding content).
“URL-based blocking compares the website requested by the user with a pre-determined “blacklist” of URLs of objectionable websites selected by the intermediary imposing the blocking. URLs (or uniform resource locators, otherwise known more colloquially as “web addresses”) are character strings that constitute a reference (an address) to a resource on the internet and that are usually displayed inside an address bar located at the top of the user interface of web browsers.” Angelopolous et al, Study of fundamental rights limitations for online enforcement through self regulation (2016), at 7. “This operates in a similar manner to URL blocking, but uses IP (Internet Protocol) addresses, i.e., the numerical labels assigned to devices, such as computers, that participate in a network that uses the internet protocol for communication. IP-based blocking has a higher chance of resulting in unintended ‘over-blocking’ than targeted URL blocking as a result of IP sharing, as a given unique IP address may correspond to multiple URLs of different websites hosted on the same server.” Angelopolous et al at 7.