Somewhere out there, there is an old photograph of a very young child standing completely naked, showing the marked signs of a most unusual medical condition.

I met that child when she was well into her old age, one winter afternoon over a decade ago.

Mariana (not her real name) had just returned from the cemetery where her husband is buried. Dressed all in black, her hands clutching a small-change purse wrapped in a clear plastic bag, she regarded me warily when she saw me waiting by her front door.

‘I am not Mariana’, she protested when I greeted her by name. ‘I am her sister. What do you want from her?’

But I knew she was Mariana. There were dark circles under her droopy eyes, just as in the photo that had accompanied the news of her medical case several decades earlier. Her hands trembled as she tried to unlock the door to her crumbling plastic-roofed shack.

I explained that I had just finished reading a recent book about ‘her sister’ and that I only wished to speak to her about conflicting information contained in that publication, as I was conducting research about her medical condition.

Mariana listened in perfect silence, eyeing me suspiciously. Upon hearing the name of the author of the book, her nervousness turned to fury.

‘God knows whether that man is even a doctor! Are you a friend of his? Did he send you here? Why on earth should I give a damn about your research?’ she shouted, veins throbbing at her temples. ‘I am��not��a guinea pig!’

Mariana’s reaction startled me.��Unknowingly, I had opened old wounds, and I felt profound guilt for making them fresh again. My unexpected visit, as it turned out, was just another one of those harassing knocks at the door that she had endured throughout her life.

‘I recognize you!’ she snapped, jabbing a finger at my face. ‘You have been following me’.

I tried reassuring her that this was not the case, but Mariana struggled to take my word for it.��Her privacy has been repeatedly invaded by complete strangers since childhood. Treating her as an object of their curiosity, her emotional wellbeing has been collateral damage. She now finds it difficult to trust anyone.

‘Please forget me,’ she then said, her voice cracking. ‘I just want to be left alone’.

LOOKING FOR ANSWERS

Mariana’s photograph was originally taken without her consent in the course of a medical examination, years before the internet existed. Soon after, it was published in a French medical journal, along with her full name and medical details. Her story then appeared in newspapers and magazines around the world. Decades later, when it was posted online, the photograph quickly went viral, taking on a life of its own. It has now been viewed millions of times, making it impossible for her to be left in peace.

Throughout her life, perfect strangers have invaded her privacy without regard for her emotional wellbeing

Unquestionably, the circulation of such sensitive material violates Mariana’s privacy, dignity and family-life interests as guaranteed by national laws and international human rights treaties. Less clear, though, is the practical question of how one goes about stopping the infringement of these rights. What can be done to stop the circulation of harmful (and non-consensual) content of this nature? Where does one even begin?

Haunted by Mariana’s lifetime of distress, and in search of answers, I landed at Osgoode Hall Law School in Toronto.

As journalist-in-residence there, I worked from 2017 to 2019 with a team of 20 law students and 18 law professors, alongside lawyers from several countries, on a project entitled ‘A Child’s Right to be Forgotten’. Our objective was to analyse Mariana’s case and find a potential solution to this extraordinary situation.

After a careful examination of multiple areas of law and a plethora of expert opinion – from legal academics, jurists, ethicists, medical professionals, trauma psychologists and scientists – we pursued several lines of approach.

COMPLICATED MATTERS

First, we considered copyright law to try to stop the circulation of the photograph. Given that it had been first published in France, UK legislation presented an opportunity to undertake corrective measures. Through the Berne Convention, the UK and France recognize each other’s copyright regimes. In France, the copyright was technically still valid – provided it could be established that the photograph was an intellectual creation under French law. If Mariana’s picture was being published online without the authorization of its owner, a request could be made to the rights holder, we reasoned, to revoke any use not bound by contract.

But we ran into difficulties locating the owner of the copyright as the image had no credit line. We tried contacting the medical journal in France, only to discover that it had since been acquired by another publisher, Elsevier Masson.

We reached out to Elsevier, but, surprisingly, they did not know whether or not they owned the copyright.

In a baffling email response, an employee from the company’s copyright unit wrote: ‘[W]e are unable to confirm that we are the legal copyright holders of the figure… and that we are entitled to deliver permissions to third parties. Therefore, although Elsevier Masson has no objection for you to use the aforementioned material subject to suitable acknowledgement to the source, it is important that you obtain, prior to use, written permission from the author(s) (or heirs) of the figure…’.

The only possibility of finding out who held copyright for the photograph was to ask the publisher if they had kept a copy of the contractual agreement with the photographer. But that turned out to be a dead end.

FURTHER INTO THE MAZE

Next on our list was image rights legislation. The island of Guernsey has legislation for the protection of a person’s image rights. This is a somewhat niche course, used mostly by celebrities, enabling them to register their image rights there and bring legal action against breaches. It sounded promising, but only Mariana, or someone acting on her behalf with her consent, could assert those rights. Seeing how Mariana avoided all contact with outsiders, and determined to prevent exacerbating her trauma by raking it all up again, we couldn’t pursue this route further.

We then looked into data protection and the right to be forgotten as a new line of inquiry. As it is in the EU, personal data is protected in Mariana’s country. Given that Mariana has not consented to the use of her personal information on the internet, a request can be made to those��processing��her information to remove it. This can be accomplished pursuant to her country’s Data Protection Act.

Better still, a request can be made directly to search engines (as opposed to individual websites) to remove search results containing infringing content. While this course of action normally would require Mariana’s direct intervention, there is a legal provision that makes it possible for a third party to lodge a formal complaint of infringement with the National Authority for the Protection of Data in that country. Mariana’s consent was not required for this action.

Encouraged by this new window of opportunity, we prepared to make our move. But soon other complexities arose. The complaint to the regulatory agency had to be filed in person, which we did – even though this required a long-distance trip. After securing the assistance of lawyers with relevant experience in Mariana’s country, we proceeded with a complaint against Google for infringing on her rights. But then, bureaucracy took on a Kafkaesque turn.

Our case was deemed inadmissible. Why? It turned out that Mariana’s consent was required after all for any action initiated to remove the very material that had been originally made public without her consent. But had Google obtained Mariana’s consent before making her personal data public online? Of course not. Could the regulatory agency make that inquiry? They failed to address this question. Two appeals later, our case was closed.

We then resorted to a non-legal approach. Bearing in mind that there is public interest in this matter, as well as a legal and moral obligation to put an end to decades of harm, we brought the case to the attention of five United Nations special rapporteurs seeking their intervention. Unfortunately, that avenue produced no fruitful outcome either.

A letter was then sent to Elsevier briefing them on the serious privacy impacts of the use of Mariana’s name and image in their publications. Would they consider removing them? Or at least blurring her face when using that image and anonymizing her details? It went unanswered.

No matter what we tried, we came up against hurdles.

THE BIGGER PICTURE

At the end of the day, this work is not just about Mariana. Her story is part of a much bigger picture.��It is the story of countless vulnerable people being harmed by the online circulation of intrusive content, while internet intermediaries profit from such material.

According to trauma psychologists, Mariana will likely never be able to develop trust in others. The consequences of her childhood trauma and public exposure are profound, dramatic and long-lasting. And that is to say nothing of the strangers interested in her story, whose curiosity makes her relive her trauma again and again.

Countless vulnerable people are being harmed by the online circulation of intrusive content, while internet intermediaries profit

The literature on image-based abuse suggests that the re-posting of such images is, in and of itself, a form of abuse. The online availability of the images causes great damage to survivors.

Taking into account Mariana’s lack of agency, it is unreasonable to expect her, or someone in a similar situation, to stand up to tech giants and fight for her right to privacy. Given that online material can be shared globally, it is challenging to identify the jurisdiction in which infringements take place.

Even when there is agency, case law shows that filing a take-down request against search engines and social media platforms is onerous. While they boast about their global reach and presence, they can be quick to argue that they are based in the state of California and are not bound by laws outside that jurisdiction.

Mariana’s story is a cautionary tale of the consequences of failing to remove harmful content from search engines and the internet. Privacy matters. To protect it, regulation is essential. But legislation also needs strengthening to be sensitive to the trauma of those suffering from the unwanted online distribution of harmful personal data.

Remember that behind a photo there is a real person; it’s not just an image waiting for a click of your mouse.

The post A Child's Right to be Forgotten appeared first on IPOsgoode.

Nikita Munjal is the IPilogue Content Manager, an IP Innovation Clinic Fellow, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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In January 2021, the then-acting president of the United States, Donald Trump, from Facebook for statements he had made in the immediate aftermath of the violent insurrection which took place at Capitol Hill. Trump’s comments were seemingly the last straw for the social media giant who had repeatedly cited its commitment to upholding free speech in defending its stance on Trump’s use of inflammatory language on the platform.

However, Facebook’s decision in January was not final. When accounts are banned or posts are removed from Facebook or its subsidiary, Instagram, users can appeal the decision to the quasi-judicial body, Alternatively, Facebook can refer cases to FOB to determine whether its decision had been fair, as was the case here.

FOB’s Decision

In early May 2021, the that Facebook was justified in suspending Trump’s accounts. However, they stated that it was “not appropriate” for Facebook to impose an indefinite suspension, which contravened Facebook’s standard operating procedure. Facebook’s penalties usually pertain “removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account” (at p.1). FOB gave Facebook six months to reexamine its arbitrary penalty and give an appropriate penalty based on the gravity of the violation and the prospects of future harm.

Facebook’s Response

In June 2021, approximately a month after FOB’s decision and within the six-month time period, Facebook : Trump’s suspension from Facebook and Instagram will last for two years, effective from the initial suspension date. However, at the end of the two-year period, Facebook will reassess whether the risk to public safety has receded.

Unsurprisingly, this set of decisions has garnered mixed reactions. Some writers have stated that this is a victory for Trump, who could return to the social media platform in time for a potential 2024 presidential run. Others have argued that this is a victory for Facebook since it could decide whether to continue to the suspension or allow Trump back on its platforms ��based on the political landscape at the time while hiding their rationale behind the risk posed to public safety.

Broader Implications for Free Speech on Social Media

Trump’s social media presence during his presidency exacerbated the discourse around regulation and moderation of content posted on social media. Specifically, questions have arisen as to whether corporations or governments are better positioned to regulate content on social media.

Some industry members including FOB member and former prime minister of Denmark, Helle Thorning-Schmidt, are calling for . These proponents cite its funding, autonomy from Facebook, and diverse membership as reasons for its potential success in regulating the space. However, not everyone agrees with that position. For one, FOB seems powerless in for its role leading up to the insurrection. This is not to suggest that Facebook is the only social media platform grappling with finding an appropriate balance between promoting free speech and preventing harm; however, its role cannot be understated.

Critics argue that FOB’s decisions by focusing too much on corporate oversight. Instead, the focus should be placed on passing legislation that curtails Big Tech’s business models and protects users from their voraciousness.

Currently, the Canadian federal government is preparing to unveil legislation regulating social media content. The legislation to be modeled after Germany’s NetzDG law, which requires social media platforms to remove illegal content under tight deadlines or face severe fines.

warn that following Germany’s precedent could be problematic for two reasons. First, it won’t effectively deal with content that is “lawful but awful”, that is, content that is legal but is known to create real-world harm. Given the Charter of Rights and Freedoms’ broad protections for freedom of expression in Canada, it will be difficult for the government to curb the expression of harmful ideas in public spaces. Second, the legislation could set a bad example for countries that criminalize forms of expression protected under international human rights law. Laws that impose severe penalties on social media companies for failing to remove illegal content under a nation’s laws could increase the criminalization of political dissenters and minority communities. To address these concerns, scholars suggest Canada adopt a multilateral approach by working with other rights-respecting democracies to prevent the internet from “splintering into a series of national networks.”

Ultimately, until the federal government unveils the legislation and holds consultations, it is difficult to predict its effectiveness. However, online content requires regulation, whether that be from corporate entities, governments, or something in between.

The post Facebook Bans Donald Trump for Two Years, but the Discussion on Regulating Free Speech on the Internet is Just Beginning appeared first on IPOsgoode.

The event began with a morning forum aimed at providing an interdisciplinary exploration of artificial intelligence systems and the effects of these technologies on the day’s themes. Moderated by , Counsel with the Law Commission of Ontario, the morning’s speakers included Insiya Essajee, Professor Trevor Farrow, Professor Regina Rini and Professor Ruth Urner.

Insiya Essajee is Counsel at the Ontario Human Rights Commission. is a professor of philosophy at 91��ɫ who teaches and writes on a number of topics in ethics, including the moral status of artificial intelligence. Professor teaches in the Electrical Engineering and Computer Science department of the Lassonde School of Engineering, with a focus on machine learning and the societal aspects of this technology. is a professor at Osgoode Hall Law School, with a research and teaching focus on access to justice, and legal and judicial ethics.

The paneled discussion was organized into 3 sections:

• What is AI, and what kinds of concerns do these technologies raise? How might we address these challenges?
  
  
• How does the use of ? What does the use of AI mean for human rights and inclusion?
  
  
• Moving forward, what should we be prioritizing in responding to AI?

How is AI Used Day-to-Day and What Kind of Concerns are Raised by the use of AI?

The panel opened with moderator Ryan Fritsch describing some of the different uses for AI, and the associated benefits and concerns. Fritsch described for the audience the way in which AI is currently in use all around us, almost everywhere we go. In certain circumstances, the benefit conferred by the technology is relatively uncontroversial. In health care for example, provides us with important health data at a rate of speed that would be impossible for a human to achieve. allow us to plan our lives in the safest way possible.

But what happens when machine learning is used to make decisions about people, as opposed to weather and radiology? ��Fritsch described some instances where AI is already being deployed in these kinds of scenarios: in , where AI is used to determine bail eligibility in various American jurisdictions based on “”, in predictive policing models , or in the use of on dating sites when it does not really exist.

With these examples in mind, Fritsch identified four areas of contention that arise in looking at AI technologies through the lens of human rights. Fritsch first recognized the transparency and disclosure issues that arise with AI technologies that we may or may not be aware of at any given moment or in any particular interaction. Questions of data, bias and discrimination came next – how is data generated? Who is developing these systems, and who is auditing the data that is produced? A third issue identified was one of “explainability”; that is, how do we ask a machine to explain the conclusion it has arrived at via machine learning? Further, how do we challenge or cross-examine AI? Finally, AI’s issues with inclusion and exclusion were identified, including problems of overinclusion when AI technologies based on historically biased data reproduces such bias.

How do we address these challenges?

The first question Fritsch posed to the panel was directed at professor Urner: are the issues identified above tech issues? If so, why is there no tech solution? According to Professor Urner, while technology shines a light on the issue of bias in data, it can’t actually provide any solutions, because the questions we’re asking and the issues we’re flagging aren’t technical at all. Addressing these challenges requires an interdisciplinary approach, involving conversations between technologists and scholars from other disciplines – philosophy, ethics and law, for example. Professor Urner urged us to remember that the benefits of AI come at a cost.

In response, Insiya Essajee suggested that while AI does indeed present issues, we can also look at the ways in which we can use AI to promote human rights. She provided the example of AI technologies helping organizations such as Universities meet their human rights requirements through initiatives like . In response to Fritsch’s question as to whether we need new laws in order to deal with the human rights challenges presented by AI, Essajee told the audience that she believes we already have the appropriate laws in place, as the already protects us from violations, whether they are committed by a person or a machine.

Regarding problems surrounding transparency and disclosure related to the use of AI, Professor Farrow argued that rule of law issues remain a major concern; everyone has the right to know by what standard they are being judged, and AI can make this impossible in a number of ways. First, people often do not know that AI is being used to make important decisions with real consequences to them. Second, there is no way to cross-examine a machine to understand how it arrived at its decision. Transparency and disclosure on the part of institutions can help address some of these concerns related to the rule of law, but solutions will need to be thought through on a continuing basis.

On the other hand, Farrow told the audience, AI has the potential to assist with access to justice goals. Citing research by Matthew Dylag, Farrow described Canada as experiencing an access to justice crisis, with AI technologies offering a way to take some of the pressure off people who find themselves requiring help with a legal issue. The potential of AI to help with services that could predict the outcome of a case based on certain factors might be of use to someone who is unable to afford or secure traditional legal services.

In a similar vein, Professor Regina Rini argued for education and awareness as critical to addressing the challenges presented by AI. Professor Rini reminded the audience of the importance of thinking through the ways in which AI interacts with people, in order to understand the capacity for AI to reflect our own biases back to us, but amplified. Professor Rini urged the audience to remain aware of the fact that machines are running on our own biased data, without the human mechanism to temper the resulting conclusions. For Professor Rini, education and awareness are critical to addressing the issues with AI in a meaningful way.

What does this mean for inclusion and diversity at 91��ɫ?

Ryan Fritsch provided the audience with some examples of the way in which AI is used on campuses: through , , and , to name a few. The next question posed to the panel asked in what ways can AI help or hinder us in achieving our inclusion and diversity goals?

Professor Urner suggested that in asking this question, what we’re really asking about is the fairness of automatic systems. For Professor Urner, the question becomes “how do we force a machine to be fair”? Her answer is that an algorithm for fairness may be impossible.

In response, Essajee proposed ways that humans might audit AI for discriminatory practices. In this, there are at least two ways in which we can look at AI decisions: we either take the advice of machines full-stop, or we supplement our human decision making with AI advice. In terms of auditing, there was no clear consensus who would perform such a task. Do we make programmers responsible for auditing outputs for bias or is this a task for another discipline?

Moving forward, what should we be prioritizing in responding to AI?

Fritsch then asked the panel to share what they perceive as necessary steps for responding to AI in a world increasingly shaped by the use of such technologies.

For Essajee, in order to ensure the responsible use of AI moving forward, we need to have effective systems in place for deciding the readiness of certain types of AI, before they are unleashed. Farrow flagged ideas surrounding the ways in which AI might be written into our notions of procedural fairness, and beyond legal rights, ensuring that institutions are proceeding forward in a human way, even when AI is in use. Professor Urner drove home the message that we must remain focused on developing and instituting interdisciplinary approaches to creating and responding to AI technology. Professor Rini wrapped up by describing how classes on the responsible use of AI are already being offered, such as those at the , and the importance of institutional efforts in educating students on the issues raised throughout the morning’s discussion. On a broader scale, Professor Rini continued, we need to ensure the wider public is aware of the ways in which AI is used, and the concerns associated with such use.

Takeaways

Throughout the morning, two key points continued to be reiterated, providing us with some important takeaways from the discussion.

First, education and awareness will be critical to ensuring the responsible use of AI, now and in the future. This includes the transparency and disclosure necessary to ensure that rule of law principles are respected. Both institutions and individuals have a role in this. Those developing AI technologies must ensure that they are aware of the ethical issues involved and must provide assurance that best practices are in place. Further, as mentioned by Essajee, we need to build strong systems for deciding when certain types of AI technologies are ready for use, and for deciding how the technologies will be managed moving forward. Those employing AI technologies should disclose the use of AI and be transparent in explaining the purpose for its use. Educational institutions must provide the tools necessary to ensure that people understand the ways in which AI impacts their lives.

Further, interdisciplinary approaches to developing, thinking about, and responding to AI will be crucial to ensuring meaningful awareness of the benefits and costs of AI technologies. Technologists must work together with scholars from other disciplines in order to advance conversations around and develop solutions for the ethical and human rights issue raised by certain AI technologies.

Thinking deeply about the issues and concerns with AI is critical in a world shaped by AI technologies. While innovation will push technology ever forward, innovative thinking by scholars in other disciplines will be critical to resolving the human rights issues raised by AI technologies.

Written by Meghan Carlin, a first-year student at Osgoode Hall Law School.

The post Artificial Intelligence and Human Rights at 91��ɫU: A Panel Discussion on Impacts and Opportunities appeared first on IPOsgoode.

In particular, Laidlaw highlighted a lack of accountability, predictability and transparency in the current handling of online speech issues. Despite the great power they wield, technology companies are understandably reluctant to face greater government regulation. They flourished in an era of light restrictions and do not welcome rigid, unresponsive policies imposed from outside. Leaving it all up to self-governance has its own problems.

In her research, she found that the technology industry has government regulation and many of the broader working groups addressing free speech, privacy and other governance issues. Tech companies prefer to band with other tech companies to create their own industry working groups. With few exceptions, those groups are voluntary. Corporations are not required to join the groups, nor are they required to comply with any recommendations issued by the groups. The result is that these corporations are not actually accountable to any outside groups for their actions or inaction.

Laidlaw also criticized the way that tech companies address complaints. When users file complaints, or have complaints filed against them, there is often little information available on the progress of issues or the potential outcome. Decisions are usually final and often opaque, leaving no opportunity for appeal. Without any information on how past complaints have been handled, there's little room for users to learn from the process -- at best, they can look to the densely written, ever-changing terms of service and privacy policies to figure out what is and isn't appropriate on a given platform.
Even aggregate information is rarely made available to the public or to researchers, so there is no information to study for trends or to spot problems in how complaints are handled. The issues that get addressed may be subjected to the whims of publicity or corporate public relations goals, rather than any systematic understanding of what is appropriate or important to take action on.

She offered a few examples of what these corporate practices look like in action:

First, she pointed to past occurrences where Facebook hosted groups dedicated to sharing rape jokes. People reported those groups to Facebook asking that they be removed as hate speech. But is a rape joke hate speech? Or is it simply a joke? Facebook’s initial stance was that these groups did not violate any of their terms of service, and they were allowed to stay. After a much greater public protest, Facebook reversed that decision, removed the groups and updated their terms of service to disallow that type of group. The new policy is a shift in how these specific complaints are dealt with, but does not alter the overall process which is complaint based and opaque. You can file a complaint, but you have no path to appeal Facebook’s decision.

Another of her examples concerned the Internet Watch Foundation (IWF), a group created by the UK ISP industry to respond to concerns about child sexual abuse photos. The group was created under threat of government regulation — if the industry did not self-regulate to the satisfaction of the government, they would be regulated externally. The IWF responds to complaints about child porn and manages a block list for UK ISPs to ensure they do not allow access to known repositories. While the IWF was created as a self-governance mechanism, it has limited oversight. Remedies for incorrectly blocked sites are minimal, and there is no notification that a site even has been blocked. She also raised concerns that the tools IWF has developed for addressing child sexual abuse photos could be expanded into other areas like copyright enforcement where the lines between what's acceptable and what's criminal or infringing are less clearly drawn.

In place of ad-hoc, inadequate mechanisms, Laidlaw proposes a new model for corporate social responsibility and governance. In this new model, governments would mandate that corporations have policies and procedures for handling free speech and human rights issues. They would have to include complaint mechanisms that are transparent, predictable and accountable. The government regulations would stop short of specifying what those processes would actually look like, leaving it up to individual corporations to develop procedures that met both their internal requirements and the government requirements.

Without a specific procedure dictated by the government, corporations would require additional support in implementing these procedures. Laidlaw suggests that support could range from sample policies to assist in drafting policies to audit tools that would allow corporations to ensure they were properly executing their procedures. With greater transparency built into the new processes, additional data would be available for research and education. Researchers could assess various policies to determine best practices, and to hold corporations accountable to their own procedures. The information could also be used to educate the public, raising their expectations about how corporations should be acting when faced with complaints.

With the history of pushback from the tech industry, getting corporate buy-in is key to the success of any initiative. Laidlaw’s model may well offer enough flexibility that corporations will accept it, without so much flexibility that they can continue to escape responsibility altogether.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Two weeks ago, the Secretariat of the United Nations’ Internet Governance Forum (IGF) approved the creation of the (DC PR). This new component of the IGF will provide a discussion arena aimed at the analysis of the relations between internationally recognised Human Rights and online platforms’ Terms of Service (ToS).

The ultimate goal of the DC PR will be to elaborate concrete solutions aimed at promoting responsibility in the adoption of ToS so as to ensure respect for platform users’ human rights. The proposed solutions, to be developed through an open and multi-stakeholder process, will complement initiatives such as the , the , the , the , the and the to the implementation of those principles.

Specifically, the DC PR will aim at developing guidance for responsible conduct by online platforms through the formulation of model contract clauses able to protect the interests of both commercial and non-commercial internet users, in accordance with the existing framework of international law, including human rights law.

The need for a DC PR

Online platforms, such as social networks and other interactive online services, give rise to transnational “cyber-spaces” where individuals can gather and express their personalities imparting and receiving information and ideas. By reason of their transnational dimension as well as of their private nature, online platforms are regulated through contractual provisions, unilaterally established by the platforms’ providers and enshrined in the platforms’ ToS.

Hence it may be argued that, by regulating the use of information within a specific online platform, ToS undertake a normative function that . However, differently from the Law of the Land, the contractual provisions delineated in the ToS can be applied in several jurisdictions, thus affecting platform users in spite of their geographical location. Furthermore, the private decisions that may be taken by the platform provider in order to implement the ToS (e.g. removing content which is not compatible with the ToS provisions) are not subject to the constitutional guarantees that frame national jurisdictions.

In addition, it should be noted that the spectrum of rights and remedies that are granted to platform users through the ToS may be difficult to comprehend or even read in its entirety, and similar platforms may be regulated through very different provisions that might be unilaterally modified by platform providers.

For these reasons, it seems necessary to engage in a common multi-stakeholder effort aimed at producing model contractual provisions, which can be incorporated in ToS in order to provide intelligible and solid mechanisms to protect platform-users’ human rights and foster platform providers’ responsibility.

Such an effort appears necessary to equip platform users with common and easy-to-grasp tools to guarantee the full enjoyment of their human rights. From this perspective, the absence of binding international rules in this area despite the universal nature of human rights represents a real challenge, which can only be effectively overcome through a multistakeholder effort, taking place in accordance with the UN ( by the UN Human Rights Council together with the UN Guiding Principles on Business and Human Rights). Hence, the concept of “platform responsibility” aims to stimulate behaviour in line with the principles laid out by the UN Guiding Principles, focusing on the responsibility of private corporations to respect human rights and to grant an effective grievance mechanism.

The ability of users to recognize and reward this type of behaviour has the potential to generate a virtuous circle, whereby consumer demand drives the market towards human rights-compliant solutions. Accordingly, the utilisation of model contractual-provisions may prove instrumental to foster trust in online services for content production, use and dissemination, allowing platform-users to directly identify those platforms that ensure the respect of their rights in a responsible manner.

The establishment of the DC PR seems therefore necessary to nurture a multi-stakeholder endeavour aimed at the elaboration of the aforementioned model contractual-provisions.

An Action Plan

The establishment of the DC PR aims at fostering a cooperative multi-stakeholder effort in order to elaborate concrete and interoperable solutions to protect platform-users’ human rights. To that end, the involved stakeholders will interact via the DC PR mailing list in order to jointly delineate a set of model contractual-provisions, defined as Platform-User Protections (PUPs).

While the long-term objective of the DC is to produce several PUPs in order to ensure the protection of individuals’ rights in a range of contexts, the first exercise of the DC will be the definition of a set of PUPs focusing on the specific issue of content removal.

The aforementioned goal will be achieved through several steps:

a)���������� An initial meeting, to be held at the , which will aim at elaborating a�� DC PR roadmap while taking stock of the existent initiatives that may be of interest for the purposes of the DC PR;

b)���������� A consultation period aimed at identifying current best practices, e.g. recognising current contractual provisions/mechanisms utilised by platform providers for content removal and the related remedies to challenge the removal decision;

c)���������� The elaboration of draft PUPs and the circulation of the different draft as Request for Comments on the ;

d)�������� Finalisation of PUPs as soon as the “rough consensus” around the most appropriate wording will crystallise;

e)���������� Definition of appropriate PUP labels (similar to those utilised to characterise the various Creative Commons Licenses) to be associated with each PUP. The utilisation of PUP labels is meant to be instrumental to enable platform providers to signal the inclusion of PUPs in their ToS and help Internet users to easily identify the platform-providers who are committed to securing the respect of human rights in a responsible manner.

In recent years, several initiatives have been taken to scrutinise and assess platforms’ ToS, particularly in the context of intermediary liability. For this reason, the first step of the DC PR will be to take stock of the existing initiatives and assess the potential of building upon prior work in this area for the purpose of putting the “Protect, Respect and Remedy” framework of the Guiding principles into practice.

Such stocktaking exercise will take place at the first meeting of the DC PR that will be open to all interested stakeholders. Attention will also be put into the mechanisms adopted by search engines for the implementation of the recent judgment of the Court of Justice of the European Union in the case, which places these particular platforms in a central position to ensure the effective protection of individual rights.

The post A New Dynamic Coalition on Platform Responsibility within the IGF appeared first on IPOsgoode.

Toronto is ground zero for these domain debates. It’s where this week the international domain regulatory body, the (ICANN) applications for new generic top-level domains (gTLDs), which are the suffixes of internet addresses.

The conflicts at play are outlined in two recent ICANN-related conference panels on new generic top-level domains (gTLDs). was hosted by the (NCUC) subgroup of ICANN in the days leading up to the conference and was hosted at the conference proper this past Sunday and featured Michele Jourdan, the Manager of New gTLD Communications for ICANN.

The good news story

The ultimate goal of the new top-level domain process is to increase choice and competition in the world of websites. To a greater extent, that is the purpose of ICANN. They have occasionally been releasing handfuls of new ones, such as .biz and .info, but this new round represents a significant increase of nearly 2000 applications for new domains.

“It’s interesting times ahead,” said Jourdan during her presentation.

The new domains will allow a wider variety of characters outside the current ones, which are largely based on the American Standard Code for Information Interchange (ASCII) computer language, which is biased toward the Latin alphabet. New domains will be available in a much broader range of character sets – for example Chinese, Arabic and Cyrillic – so that top-level endings of the domains will now match the characters used in the first part of the URLs.

Freedom of expression concerns

Freedom of domain expression is a hot-button issue. ICANN’s current process for domain applications includes a significant subjective component. After ICANN receives the application and processes it – they can at this point refuse the application based on their own, somewhat objective evaluation guidelines – the application information is posted online .

According to panelist , a professor at the Syracuse University School of Information Studies and a founder of the Internet Governance Project, there is a censoring impact of crowd-sourcing portions of the domain application approval process that can result in ��mob mentality.

“The implied standard here is, if enough people make enough noise, they can block an application for any reason. It doesn’t have to be specified. It doesn’t have to be illegal. It can simply be threatened by the fact that a lot of people don’t like it. Now to people who believe in freedom of expression, that whole standard, the community veto standard is completely problematic. It’s anti-freedom at its core.”

Protecting the public interest

In theory, the increase in the supply of domain endings should reduce the demand or for any certain or specific ones; an increase in options should reduce competition. But more domain suffixes may actually create more conflict between corporate and public interests. Rather than arguing over a single website URL, the fights will be over entire gTLD sections of the internet. The stakes with gTLDs are far higher than for individual sites within the .com or .ca pre-established gTLD.

The .patagonia tug of war is a good example. American retailer Patagonia Inc. has submitted an application for .patagonia, despite it also being the name of a region in South America straddling Argentina and Chile. Argentina’s representative to ICANN has understandably objected to the application, about a region’s rights to possession of their gTLD.

Panelist Philip Corwin, a lawyer from the , expressed anti-trust concerns about the ability of leading internet search providers and web giants like Google and Amazon to control a disproportionate amount of domain digital real estate.

In his oped for the Domain Name News, , Corwin outlines the danger of consolidating popular domain endings in the hands of a few.

“The bids by [Amazon and Google] to acquire new domain names such as ‘.book,’ ‘.shop’ and ‘.movie’ renewed fears among competitors that a powerful few will dominate the Internet marketplace of the future…If Internet users embrace the new domains, the companies that control them could bear considerable influence on Web traffic.”

Problematic governments

But corporations are not the only interest to balance. Governments can also act as roadblocks to increasing internet choice and competition. Some more restrictive governments may block certain top-level domains entirely, which can also be referred to as taking “fragmentary” or “cessation” actions.

Moreover, some governments struggle with the technical components of the international regulatory regime said panelist and ICANN board member .

“One of the big challenges is that today the processes that are in place in the intermediaries or in the platforms, the processes that are used by the governments, are usually not documented enough, transparent enough, accountable, and worst of all – or most important of all ��– they are not well interoperable.”

But countries do not necessarily lag by choice. There is an historic socio-economic, linguistic and regional dimension to internet technology development. These biases continue to manifest in ICANN and its processes, for example, as previously mentioned in terms of the lack of alphabet character diversity. Similarly, the gTLD application regions of origins are telling. , of the 1930 applications received during the last application window, only 17 were from Africa and only 24 were from Latin America. Europe and North America submitted 675 and 911 respectively.

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What it all means

There seems to be general consensus among the digital classes that ICANN has the authority to continue and develop norms for assigning internet names and numbers. Having one established internet regime, no matter how much room there may be for improvement, is helpful to provide a single, credible forum to debate these crucial contemporary issues. The next job is increasing the diversity of voices in that forum.

There is still much to be done by way of reducing the commercial biases of ICANN and its processes, as well as creating more objective and transparent processes. To paraphrase from Professor Mueller, if ICANN is going to have a bias, then let it be for liberal democratic principles.

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Getting involved

Those interested in promoting the public interest of domain assignment can visit the NCUC .

The Noncommercial Users Constituency (NCUC) is the home for civil society organizations and individuals in the Internet Corporation for Assigned Names and Numbers (ICANN) Generic Names Supporting Organization (GNSO). The NCUC is a Constituency within the Noncommercial Stakeholder Group (NCSG) at ICANN. With real voting power in ICANN's policy making and Board selection, it develops and supports positions that favor noncommercial communication and activity on the Internet. The NCUC is open to noncommercial organizations and individuals involved in education, community networking, public policy advocacy, development, promotion of the arts, children's welfare, religion, consumer protection, scientific research, human rights and many other areas. I agree to advocate a non-commercial public-interest position.

Denise Brunsdon is a JD/MBA candidate at Western University.

The post ICANN See Some Problems: New Domains and Freedom of XXXpression appeared first on IPOsgoode.

While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that��plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement.��The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was ��pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The “Word” Is Not Enough: New Cybercrime Prevention Act Leaves Philippine Plagiarists Criminally Vulnerable (UPDATED) appeared first on IPOsgoode.

Ultimately, the human rights of the complainants under were unjustly violated by the retention of photographs, with being exacted on minors. protects the right to respect for private and family life, effectively serving to protect citizens from unreasonable encroachment by the State into the private lives of its citizens. Particularly, Article 8.2 indicates that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The test for whether limitations of this right by the State are reasonable is akin to the of limitations under Section 1 of the Canadian Charter of Rights and Freedoms.

In the aforementioned case, R(RMC & FJ) v Metropolitan Police [2012] EWHC 1681 (Admin), the High Court deemed the policy of police retention of suspect photos following uncharged release to be an unreasonable limitation of Article 8 rights for three primary reasons:

1. No distinction was drawn between suspects that were convicted, charged and acquitted, or not charged at all,
2. Retention was indefinite and potentially infinite, and
3. The harmful effects on minors were not mitigated

It had that the indiscriminate or indefinite retention of DNA and fingerprint data of innocent people was unlawful in Europe, and the ruling in R(RMC & FJ) extended this breach to photographic data.

The concept of creating a database with biological and identity profiles of citizens is a controversial one. In R(RMC & FJ), the Met argued that such practices were a reasonable limitation of Article 8 rights due to necessity for preventing crime and disorder. While such practices would likely assist the police in investigations, a balance must be struck between private and public interests. By not discriminating between released suspects and convicted criminals, the ECHR privacy rights are essentially negated, and the police begin to overstep their power. Particularly in the cases where minors are arrested but released without charges, such as the complainant FJ in the present case, holding a record could be misleading and effectively “stack the deck” against an individual in the future if arrests were made. Such action by the police has been held to be a disproportionate use of power, and in violation of human rights guaranteed in Article 8.

Being arrested and interrogated is in and of itself a for innocent individuals, albeit often essential to the administration of justice. However, the High Court sent a clear message to the Met that such innocent individuals should be guaranteed the peace of mind that the experience of arrest will not be of legal detriment in the future if they are not convicted of an offence. Indeed, this is exactly the type of reassurance that Article 8 serves to provide.

These values have been mirrored in Canada, and Chantal Bernier, the Assistant Privacy Commissioner of Canada has suggested that . With respect to DNA databanks and the surrounding privacy issues, which also pertain to the retention of such personal information as photographs, she argues that the law enforcement response will not be effective if not focused (i.e., gathering only the information relevant to achieving its purpose). Through this approach, justice can be efficiently served while minimally encroaching on the privacy rights of citizens. Certainly, the High Court agrees with this approach and helped to clarify the boundaries of what is relevant information when balanced with privacy rights.

With advances in technology, it is evident that not only is��crime being enhanced, but also the power of the information in the possession of law enforcement. As such, the policies governing the conduct of the State must continue to adapt in order to protect our basic rights without obstructing justice, and the Courts have thus far done an excellent job ensuring that this is the case.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.

The post Quantum of Solace: UK Court Deems Police Retention of Uncharged Suspect Photos an Invasion of Privacy appeared first on IPOsgoode.

Only one post remains on the and it is tellingly tagged "RIP" and "the dion effect."��Dion's lawyers sent Nick Angiolillo, the New 91��ɫ blogger who runs the satirical Tumblr site which mocks silly photos of the singer, letter that him to remove all the original posts.

Angiolillo claims that he is likely in the right, but that he doesn't have the financial resources to engage counsel to respond; a wise choice on his part. There are a lot of issues at play here. Firstly, there may be a marked difference between the privacy rights and image/likeness sovereignty that can be demanded by an average citizen as opposed to a celebrity. Another issue here is practically a staple of many IP dilemmas: one nation's protection may be different than another’s, but a URL is, for the most part, international.

What about the fact that they are in many cases the work of photographers? What would be most interesting to know is whether or not Angiolillo purchased the images and rights��from photobanks or simply cribbed them off a Google search. If the latter, then Celine Dion's cease and desist letter��may only have been the first of several to arrive.

This brings us to an interesting point: attributing the rights of a photo to the photographer may be an outdated and archaic way of organizing online property. Indeed, now that one cultivates, fosters and monitors their online presence, one’s reputation seems to be more valuable than a single photo (or in this case, many). When photographs were primarily utilized by print sources, their regulation and distribution could be easily controlled by the Copyright Act. The world of Internet, however, leads one to ask: what are the rights of the subjects of these photos?

And finally, on the self-expression side, is there any sympathy for the fact that the blog was a genuine piece of tongue-in-cheek parody and not some kind of explosive and commercialized meme? A similar, but intensely more sophisticated site, , has t-shirts and advertising and thus the bloggers in this case are making money by making fun of celebrities. Angiolillo's grassroots site stands in remarked contrast.

Canadian courts have the 'parody defence' of material subject to the Copyright Act. This case, however, would likely be subject to US standards of 'fair use', where using material for parody purposes has been established a .

The ultimate lesson, however, is that in the early days of any legal arena with many suits pending and little precedent work – as most certainly the case with digital intellectual property and likeness law – those with the money to engage lawyers��have the upper hand.

The post Celine Dion Takes On Satirical Blogger In David And Goliath Fight (Spoiler: Goliath Wins) appeared first on IPOsgoode.

Canadian telecommunications giant Research in Motion (RIM), which manufacturers the popular BlackBerry, has reportedly offered information and tools to assist India’s government in monitoring encrypted emails and messaging services ().����India, which had threatened to shut down the BlackBerry service, is the latest country to pursue access to user communications from RIM.�� Recently the governments of Saudi Arabia and the United Arab Emirates have also threatened to ban BlackBerry services unless RIM provides access to user data ().

The threat by foreign governments to ban BlackBerry services poses a serious danger to RIM.�� Competitors in North America continue to eat away at RIM’s once dominating grasp on the smart-phone market, and RIM wishes to expand in the global marketplace to further develop its customer base.�� The reported that during the last fiscal year, 37 per cent of RIM's $15 billion in revenue came from outside North America, up from 23 per cent about five years ago.�� The demand for security concessions from countries such as India may threaten to erode RIM’s customer base as smart-phone manufacturers Nokia and Apple have already lined up to move into this market.��

RIM, unlike rivals Nokia and Apple, controls its own networks, which handle encrypted messages through centres in Canada and the UK.�� Should BlackBerry service be restricted in India, Nokia and Apple would easily snatch up RIM’s market share. This is because Nokia and Apple rely on local telecommunications infrastructure to transmit their data allowing easy government oversight.�� As a result Nokia and Apple would not be subject to a similar ban, as proposed by the Indian government against RIM.��

India has suffered deadly attacks, by both home grown and foreign militants, with some regularity for years. Mohammed Ajmal Kasab, the lone surviving gunman in the 2008 Mumbai attack, told an Indian court that he and his comrades all had Nokia mobile phones ().�� India and other foreign governments are seeking access to encrypted Blackberry communication that could be used to coordinate national security threats.���� ��

In response, RIM has assured its customers ‘that it genuinely tries to be as cooperative as possible with governments in the spirit of supporting legal and national security requirements’ ().�� ��RIM stated that a foreign government’s access to BlackBerry communications should not be boundless, and ‘lawful’ access be limited by four principles.�� First, that access be restricted to the context of national security requirements as governed by the country's judicial oversight and rules of law.�� Second, government access to BlackBerry services should be no greater than regulators already impose on RIM’s competitors and other similar communications technology companies.�� Third, no changes will be made to the BlackBerry’s security architecture and finally that RIM will maintain a consistent global standard for lawful access requirements that does not include special deals for specific countries.

RIM and other companies will likely continue to work with foreign lawmakers in their respective countries to resolve national security concerns.�� However, in doing so RIM risks damaging an important aspect of its business, its reputation.

BlackBerry Messenger users have long enjoyed the secure end-to-end encryption methods used by RIM to scramble information sent from one RIM phone to another.�� However, as reported by the , RIM may have agreed to place a BlackBerry server inside Saudi Arabia and more recent reports indicate RIM may hand over the “codes” to all local BlackBerrys to the Saudi government.��Providing such information has drawn RIM into the ongoing debate of the morality and ethics of allowing foreign government access to communications that can be used to quell political dissent and imprison human rights advocates.�� The reported the comments of Ron Deibert, director of the Citizen Lab at the University of Toronto’s Munk School of Global Affairs: “These can be ruthless nasty regimes where political opposition or human rights advocates are imprisoned or worse. In colluding with them, [RIM is] assisting in that abrogation of human rights.”

Canada and the United States (U.S.) have aligned behind RIM against access to Blackberry communication, citing the need to defend consumer privacy and internet freedom ().�� The economic interests of Canada and U.S. are also at stake, which may have instigated the strong response by these countries against the proposed BlackBerry bans.�� Patrick Leblond, an expert on international economic integration and government-business relations at the University of Ottawa summarized Canada’s position “It is good business for the Canadian government to stand up for RIM, since this is one of the world's leading technological companies, and ‘what is good for RIM is good for Canada.’”������

RIM’s struggles with foreign governments to maintain its security systems and preserve its market share will likely expand to other forms of communication.�� Any concessions made by RIM may set a precedent for future negotiations between foreign governments and other communications companies.�� As reported by the , the Indian government is already considering a crackdown on Google and Skype to gain access to the information transmitted by these services. Moving forward, it will be interesting to observe the impact that RIM’s security negotiations will have on other communications based companies.

The post RIM’s Battle for Information Privacy, Market Share, and its Reputation appeared first on IPOsgoode.