Notice and take down

November 23, 2010 § Leave a comment


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Suppose you lead a small and flat organisation that delivers internet services as middle man. Suppose you lead an ISP. People can take each others place in your organisation. People are quite capable and the organisation is flexible. But overall your company or aggregate uses a variable pattern and now and then you have to put out fires.

Western “knowledge is power” political mindsets desire a grip on the internet, and to regulate the flow of information and knowledge. New regulations appear from the political above as if “live fast, die young, and leave a good-looking dead horse behind” is motto. And each new regulation could potentially ignite some new fire.

Response ability

You do not wish to blindly adhere to take down notices, as it can threaten freedom of speech. That’s commendable in my book. It spells High Integrity and Awake to me.

A 2004 study on EU Notice and Takedown procedures (pdf) found that 70% of hosts complied with a generic request to remove an article that was clearly in the public domain (the author had been dead for nearly 120 years). This is despite the fact that the sender was using a free Hotmail account and writing on behalf of a fictitious organization.

Still, you hesitate pushing routines and protocols on the people in your company. It’s bossy. Not at all like the “flat organisation” you envisioned and wish to stand for. Pushing doesn’t feel right.

Putting out fires

Bow and arrow

Why investigate system responses?

A few fires need looking back so you can learn from what happened, but you’d really rather have people steer their own learning. Your organisation is delivering on-demand services to its customers, so a steering pattern would be more congruent anyway.

If people focus on steering and being response-able, a few routines are not a problem. Especially not if they build them together, and individual preferences have played their part in their creation, and they can change practices when “things” change.

The “old” Notice-And-Take-Down

Notice-And-Take-Down is both simple and quite complicated. Articles 12 and 13 of the European Directive on Electronic Commerce (EDEC) removed all liability for providers that are “mere conduits” of information or are simply engaging in caching.

Under the E-Commerce Directive, an ISP is exempt from liability when it serves as a “mere conduit” (Article 12) or provides “temporary caching” (Article 13) for the sole purpose of making the transmission of content more efficient, is of a mere technical, automatic and passive nature, and where the ISP has neither knowledge nor control over the content being transmitted or stored.[11]

ISPs providing content storage, i.e., hosting services (Article 14), in order to benefit from a limitation on liability, must act “expeditiously” to remove or disable access to content upon receipt of “actual knowledge or awareness” of “illegal activities.”[12]  This Article does not affect the possibility of Member States judicial or administrative systems to require an ISP to terminate or prevent an infringement, or to establish procedures governing the removal of, or access to, content.[13]

New regulation

This document (pdf) is a response to the ongoing discussions organised by DG Home Affairs of the European Commission with regard to notice and takedown of material alleged to be illegal and hosted on the Internet, and to the proposed “draft Recommendations for public-private cooperation to counter dissemination of illegal content within the European Union (pdf)”.

As a general consideration, the signatories of this document, representing the Internet Industry and civil society, consider that the draft Recommendations, rather than covering “illegal content” as the title suggests, actually focus on what should be done in cases of allegations from various sources (police, hotlines, citizens and “other bodies duly authorised”) that material is illegal (i.e. in breach of the criminal code) or unlawful (i.e. in breach of civil law).

I recommend you anticipate likely effects of OBLIGATORY Notice-And-Take-Down, and raise awareness on some best-case and worst-case scenarios applicable in your context.  Perhaps call in an expert like a lawyer specialised in internet regulation and international law.

And once you have expressed a first overview of effects (it’s an ongoing practice) in your context, translate it to daily practice by some roleplay. That type of learning is not associated with school, authorities and suppression. It’s fun and people can build protocols and procedures together. Not at all like a teacher or authority telling anybody to “Notice And Take Down”.

Future developments

As the internet is becoming increasingly globalised, international treaties and foreign policies are likely to become much more important in the coming years. All people in your organisation, as well as your customers, are key for keeping track of and being response-able to changes in political treaties and policies. Make congruent steering and regular anticipation your new routines and learning field.

And if you get an excellent facilitator like me 🙂 the facilitator will transfer knowledge in designing and facilitating roleplay sessions as well, so your organisation or aggregate can choose to use roleplay for self in the future without having to bring outsiders in. There may still be situations for which an outside facilitator is a good idea, but for roleplaying new regulations raining down from a political above, once may be enough to get the engine running.

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