Compromise Between The Interests Of Information Society Service Providers And Those Of The Victims Of Copyright Infringement, Defamation Etc.

Compromise between the Interests of Information Society Service Providers and those of the Victims of Copyright Infringement, Defamation etc.
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Compromise between the Interests of Information Society Service Providers and those of the Victims of Copyright Infringement, Defamation e.t.c
Over the last two decades, the digital revolution has significantly changed the way people access and understands the news, particularly when it comes to news that is accessed from an online platform. Numerous scholars are of the opinion that manipulative and uncivil behaviors that take place on the online platform may persist and would become worse in the future. This implies that information that is spread on social media and other internet platforms will not be regulated and it will be separated from zones that are regarded as free-for-all.Directive 2000/31/EC, also referred to as the e-commerce directive, tend to address issues concerning the communication of personal data so that copyright information can be protected. Experts worry that free exchange of information will be compromised and lead to copyright infringement and violation of people’s privacy.This paper critically analyzes the compromise between the interests of information society service providers and those of the victims of copyright infringement and fake news.[Tanel Kerikmäe,Regulating Etechnologies in the European Union [recurso Electrónico]: Normative Realities and Trends. (Internet resource. N.d) 128] [KIara Votavova and Jakub Janda, Making online platforms responsible for news content (/wp-content/uploads/2017/07/Making-online-platforms-responsible-for-news-content-3.pdf 2017). 3]
Background of the E-Commerce Directive
In the same way that technologies such as TV and radio shaped societies in the past, the internet is increasingly being used in the current generation to shape democracy. Studies have shown that elections that were carried out in 2016 in different parts of the world increasingly utilized social media such as Twitter and Facebook to influence political ideologies and voting patterns.However, the proliferation of misinformation and fake news on online platforms posed numerous challenges to authentic information and copyrighted material. This is one of the main factors that influenced authorities in the European Union to develop strategies that would be instrumental in curbing the spread of misinformation. However, it is important to note that it is increasingly challenging to differentiate between facts and fake news since online platforms are influenced by perceptions of different agents.[Jacob Finkel, et al, Fake News & Misinformation Policy Practicum (https://www-cdn.law.stanford.edu/wp-content/uploads/2017/10/Fake-News-Misinformation-FINAL-PDF.pdf 2017) 91]
The main aim of the Directive 2001/29/EC, also known as the InforSoc Directive, was to ensure that the various attributes of copyright and other rights associated with the information society were harmonized. Minimum aspects of copyright protection were introduced by the e-commerce directive but it did not set the standards that could be used to safeguard the interests of the public. Therefore, implementation of this directive did not enable the European Union to harmonize the copyrights which numerous parties were seeking.More specifically, the directive provided for copyright limitations and exemptions that were of optional nature, and it also failed to limit the range of protection of copyright and other rights that had been described in the directive. This resulted in continuous fragmentation of copyright regulations, particularly among the member states. A good example is the case of Newzbin 2” (20th Century Fox v Newzbin (No1) [2011] EWHC 1981 (Ch) where the court found Newzbin website of having infringed on copyright regulations by publishing films owned by different sites.[Reda J, Implementation of Directive 2001/29/EC of the European Parliament on the harmonization of copyright (https://pub.juliareda.eu/copyright_evaluation_report.pdf 2015) 11] [Newzbin 2” (20th Century Fox v Newzbin (No1) [2011] EWHC 1981 (Ch)** Cartier International v BSky B et al [2014] EWHC 3354 (Ch)]
To further extend the blocking of sites that infringe on copyright laws, the UK court extended this law to deal with sites that deal with deal counterfeits. In Cartier v BSkyB etc [2014] EWHC 3354 (Ch), the court extended the law to deal with trademarks, implying that sites which hosted counterfeits could be blocked. Evidence shows that the level of fragmentation has been worsened when certain member states recently introduced neighboring rights which specifically focused on online uses. A good example is when Spain and Germany introduced in 2013 and 2014 the ‘ancillary’ copyright regulations for press publishers and these policies were targeted for news aggregators. Furthermore, current European Union policies failed to adopt the rapid increase in the cross-border exchange of culture that has been enhanced by the internet. Evidence suggests that the capacity to understand the essence of the law is critical to the legitimacy and acceptance of the directive. Therefore, people, public institutions, and private organizations have failed to clearly understand the copyright laws that have been proposed by the directive, and this has led to the ineffective implementation of the 2001 Directive.[Cartier [2016] EWCA Civ 658] [Rainie, L, Janna Anderson, and Jonathan Albright, The Future of free Speech Trolls, Anonymity, and Fake News Online (/docs/e-web/imagining/surveys/2016_survey/Pew%20and%20Elon%20University%20Trolls%20Fake%20News%20Report%20Future%20of%20Internet%203.29.17.pdf 2017)]
More specifically, individuals who access, create, and transform news works as they use information from different member states are usually exposed to a burdensome system. In Metropolitan v Design technica [2006] EWHC 407 (QB); and Canadian in Crookes v Newton, the claimant argued that the article published by the defendant on his website contained defamatory information. However, the judges ruled presence of hyperlinks was similar to footnotes which indicate the source of information. In addition, these individuals are exposed to legal uncertainties since they are unable to understand if they are legally compliant with the law, of if they can carry out their business activities without having to incur huge transaction costs or cross the legal guidelines. What this means is that the implementation of the Directive was aimed at upholding 13 freedoms of the European Union, but most of the shortcomings have raised numerous concerns.[Laurie, G T, Shawn Harmon, and Gerard Porter. Mason and Mccall Smith's Law and Medical Ethics. (Oxford, United Kingdom: Oxford University Press 2016) 52] [Metropolitan v Designtechnica [2006] EWHC 407 (QB) ; and Canadian in Crookes v Newton,] [Mario Viola de Azevedo Cunha and Luisa Marin Giovanni Sartor. Peer-to-Peer Privacy Violations and ISP Liability: Data Protection in the User-Generated Web’, (International Data Privacy Law, pp. 50-67) 54]
The Spread of Fake News
The internet has played an instrumental role in enhancing social interaction across the global ecosystem. Currently, the contemporary lifestyles rotate around the internet network, particularly when it comes to news feeds, updating personal statuses, political advocacy, following comment chains, and making omnipresent rankings, reviews, and ratings. During the first few years when the internet was expanding, the public idealized the connected world as an unfettered civic forum, where people could spread different ideas, views, and information using a constructive platform. Optimism originated from individuals such as Stuart Brand who introduced WELL in 1985, the founder of World Wide Web, Tim Berners-Lee, and the co-founder of the Electronic Frontier Foundation, John Perry Barlow in 1996. The aim of these individuals was to ensure that the internet establishes a level playing field where information could be shared among people, private institutions, and public institutions. However, most of the users of the online and information society have become victims of online copyright infringement, extremism, and the spread of fake news.[Rainie, 3] [Ibid, 3]
Although the internet has played a huge role in enhancing the spread of information in the society, the spread of fake news has compromised the work of providers of information systems and individuals who are victims of copyright infringement. For instance, from the beginning of the 21st century, increased diffusion of the internet network and the role of Web 2.0 in enhancing the influential impacts of the social media have altered the discourse of the internet in developing a level playing field. The eligibility of information that is spread mostly depends on how data is collected, analyzed, and verified, and this influences the difference between fiction, fact, and fake news.Studies have shown that most internet analysts, as well as the general public, believe that the tone, content, and information that is posted online has gone through the drastic evolution that poses a threat to users of the internet platform. This is because the discussion and events that continue to unfold over the past years indicate the struggles that will have to be tackled when it comes to the spread of altered information.[Felipe Romero-Moreno. Fact, fiction and fake news—the involvement of data and analytics (http://researchprofiles.herts.ac.uk/portal/files/12171726/LexisNexis_Fact_fiction_and_fake_news_the_in_volvement_of_data_and_analytics.pdf 2017) 1] [Poort,J.,etal.Baywatch: Two approaches to measure the effects of blocking access to. The PirateBay. (s 2014)]
Impacts of the Internet and Fake News
When it comes to the spread of fake news, esteemed internet analysts such as John Naughton ones wondered if the internet has turned into a failed state. He argued that the numerous amount of fictitious information that spreads on the internet can simply be described as a platform of the failed state. Conversely, a testimony that was given to the U.S. Senate stated that social media is effectively being used as a platform for advancing extremists causes. In addition, there has been increased attention on the way social media is being used by terrorists as a weaponized tool, enhancing the spread of modern ways of spreading propaganda. Research studies have also revealed that some individuals implemented social bots in acts whose objective was to disrupt the 2016 presidential elections in America. Different institutions also documented the way foreign trolls tried to bombard social media in the US with fake news.[Van Alsenoy, Brendan, Liability under EU Data Protection Law: From Directive 95/46 to the General Data Protection Regulation (/issues/jipitec-7-3-2016/4506 2016)] [Rainie, 2]
According to Dr. Felipe Romero-Moreno, the intersection between data and analytics has increasingly been used in contributing to the current international problem associated with the spread of fake news. He argues that although nations have increased their attention on the issues associated with modern technologies, including the development of Artificial Intelligence (AI) systems, the basic issue is who should be involved in determining which news are fake and which are facts. The biggest problem is determining how data is collected and verified, particularly when it comes to the production of new opinions and information that are reliable. Studies have revealed that the difference between fact and fake news tend to depend largely on how people collect, analyze, verify and spread data.Therefore, presence of huge amount of information as well as user generated content across the world implies that verification of such information has to be done using an automatic means.[Romero-Moreno, 1] [Cunha, Mario Viola de Azevedo, Market Integration Through Data Protection: An Analysis of the Insurance and Financial Industries in the Eu. (Dordrecht; New York: Springer 2013). 37]
A good example of verifying the reliability of information is the issue of copyright laws. Evidence suggests that automated solutions are currently being utilized to tackle online piracy since there is a huge amount of user-generated information that is being generated without abiding by the copyright law.For instance, software is increasingly being used by copyright holders to identify the presence of copyright infringement on online platforms. In addition, when an infringement is detected, the copyright holder alert internet intermediaries who will then remove the infringed content of de-index the content so that it cannot be accessed through the internet. Nevertheless, although verification of information is crucial when trying to analyze new stories, studies have revealed that there are numerous challenges when it comes to the use of automated services. For instance, when it comes to giving notice and implementing takedowns, Google reported recently that 99.5% of requested takedowns that had been generated using automated system were bogus. This is based on the regulations placed forward under the U.S. Digital Millennium Copyright Act of 1988.[Cremona, Marise. New Technologies and EU Law. (Oxford: Oxford University Press, 2017) 179] [europa.eu,e-Commerce Directive. (https://ec.europa.eu/digital-single-market/en/e-commerce-directive 2017)] [Ibid, 1]
Online Platform and the Problem of Copyright Infringement
Over the past few years, the highest courts in Europe have tried to find solutions to the problems posed when it comes to intermediary liability, copyright infringement, and the aspects of a “fair balance” among the competing fundamental rights. Moreover, the system of “notice-and-takedown” that was described as a solution to the problem of intermediary liability has been adapted internationally. In addition, this system has diversified into variety ‘notice-and-action’ variables that are different in various countries. Various scholars have attempted to determine how these varieties of intermediary liabilities can be effectively combined to ensure that different countries are able to tackle the problem of infringement that commonly occurs in online platforms.The concept of ‘fair balance’ is thus recognized as a compromise that differs from the ‘horizontal’ approach that is commonly used in the European Union to a ‘vertical scheme.’[Christina Angelopoulos and Smet, Stijn, Notice-and-Fair-Balance: How to Reach a Compromise between Fundamental Rights in European Intermediary Liability (Journal of Media Law 2016) 1] [Tyler Moore and Richard Clayton, 4]
The EU has been used as a safe harbor regime where authorities tailor ...