That is why all proposals on this issue need to be considered with caution. This likewise to applies to the plans, including all project drafts, put forth by Poland’s ruling Law and Justice party on this issue.
Debates as such were also allegedly held in February 2016. Nonetheless, the laws passed in the Police Act granted the surveillance authorities harsher powers in their dealings with internet users than even the United States did after 9/11. I'm not surprised by the first emotional reactions to the proposed changes of the Act which regulate the implementation of the directive to provide electronically supplied services. I'm not surprised either that the attempt to follow German solutions with regards to fake news (horrifyingly exaggerated fines of up to 50 million euros if the questioned post is not removed within a certain period) may raise the threat that online content produced by opposition will be considered by the Big Brother as unacknowledged and in need of deletion. This is the substance of the case. Can the Office of Electronic Communications and The National Broadcasting Council act objectively overseeing all of these matters? Much has been happening in Poland for the past twenty-one months and the credibility of such institutions in Poland is either non-existing or minimal.
For many years until now, there was a rule that the operators and the administrators of platforms with various transmission channels were not held responsible for what appeared in their channels. Unless the content was breaking the law by exhorting to crimes, crimes against children connected with pornography and sexual harassment etc.- in which case they should be deleted. The trouble however from many years was implementing the rule of “notice and take down” - because it was not clear who had to flag infringements, decide whether a breach of rules had taken place and under what conditions, or determine the time period within which the questioned materials should be deleted. This procedure of lodging complaints, as currently outlined in the bill, must be extended and based on clear rules. This a good way and must be clear and effective. However, the devil is in the detail.
The mechanism exists. When the Code of Conduct on illegal online hate speech was signed between the Commission and business partners, with its inclusion of clear examples of breaches of the law, it was thought that the most important aspect was to infer responsibility to the platform administrators. They were compelled to be accountable and helped by the creation of a network of trusted organisations which monitor the net and would report problems. After a first analysis, we can see that this has aided in fighting hate speech on the web and sped up the deletion process of questionable material which is now removed within the first dozen hours after the initial notification. Who knows whether this procedure is not better than to infer responsibility to the duties in this area. It surely is preferable than censorship laws.
On the other hand, for many years, there has been an increase in the implementation of rules at the grassroot level. Large companies, operators of platforms have their own rules of what is acceptable and what not. Based on such rules, Facebook deleted the pages of organisations and groups guilty of seriously racist content from its website in Poland in recent months. It did a good job, even if the leaders of fascist organisations protested and cited freedom of speech and freedom of expression to have the content reinstated. As a matter of fact, it should be forbidden to promote content of this kind in many countries and not only Poland. We all should remember the madness of the 20th century.
Despite what minister Streżyńska said, these regulations are not totally allowed. They are fitting cultural norms and legal frameworks of different regions, as the sensibility is different in Asia, Africa, and will be different in Europe. The introduction of “soft-law” and self-regulation in this area is better than inferring the decision to judge what can be counted as the norm and what not to government officials. This is especially true of matters which are as of their very nature controversial, even more so in countries where we may observe the building of an authoritarian model, as in Poland, and where it is not clear whether the judicial system will be independent – which is needed for the credibility of the implemented solutions. Here we can see another substance of the cause. If we want to develop the way of the court procedure (the idea with 24-hour court procedure), firstly it needs to be efficient, transparent and trust building. The influence of what is Law and Justice doing with the court system affects drastically changes proposed by the government. Minister Streżyńska likes to live in such a bubble and tell marvellous stories. However, “reality is squawking”.
The scale of the problem and the will of the states to confront it has risen immensely: as a phenomenon such as hate speech is, akin to a snowball, gathering speed speeding up, the phenomenon of fake-news has become massively common. Here the question of telling the difference between the true and false information, as well as probable fact and opinion which only interprets facts, is becoming more important. For behind the opinions, there can be views and the freedom to expose them. It is impossible in modern days to create an institution which could follow, adjudicate, and settle these questions. In the past, this aim was achieved through censorship. Can courts in cases of ex post hold such a role? Following a 24-hour standby mode when considering the movement in the internet?
In thinking about a solution to this fairly complicated matter we need to ask ourselves serious questions. Do we want to relinquish control over our emails as a transfer of our opinions in the name of the civil order? Do we want for the institution of the censor to monitor billions of opinions and voices on fan-pages and judge it every day? Do we want all companies to be forced by law to introduce technologies which recognise content (a measure publishers have long wanted to be included in the copyright directive), which could lead to a common control what we publish anywhere? The problem stems from the fact that the core idea of a free internet is that we can post our opinions, texts, comments, or songs, provided they are sourced legally, where we want. We should therefore be held responsible, not the internet as such and in the organisational sense networks, platforms, and social administrators.
They of course should have of their own responsibilities. They should be active in deleting illegal content and provide tools (such as flagging contents which we think might be fake-news, as has been introduced by Facebook to inform other users), they should be opened for reactions of different users. They should not be passive, while in the name of freedom of speech, people are slandered and discriminated against, even if the law of the land states that discrimination against for instance people with disabilities is penalised, as is the case in Poland).
That's why one point in the solutions proposed by Law and Justice is strange or even shocking! Everywhere in the world, we are looking for solutions to remove contents, be it because they are deemed intrusive, illegal, in breach of social norms, and distorting the truth. However, Poland is the only country which is not looking for ways to remove such content from the internet, but instead seeks to bring it back. It is twisting everything. This is not the source of the problems we face. Or maybe the changes are made that the content consisting racism or radical nationalism, deleted by the moderators, could be brought back by decisions of the courts or forced by some institutions. In the name of the defending freedoms, the new censorship guillotine will be released.
The idea of taking the power to delete content from the moderators under posts which can be calling for terrorist action or insult someone. Will we be forced to wait for the post to be flagged? The fight with the evil side of the internet needs us as users to be active, as well as platforms administrators.
By the way, it is worth mentioning that it is not as if there was no control over content relevant to national security, such as terrorism. The rules of the directive regarding police clearly state how to apply them in compliance with rules of personal data protection in case of serious crimes (interpretation of Court of Justice of the European Union), which would be timed and controlled by court (in case of Poland it is ex-post!!!). Why do I write about this? Because the adjudication of responsibility for content posted on the internet is complex. According to Europol data, the cooperation between online platforms and counter terrorism units in the EU is already at a very high level and all the law requirements have been stated in the last counterterrorism directive – which was laughed at within the Polish online community.
Watch Out! Internet!
It is good that we have a discussion on the role and responsibility of platforms. The debate is also held within the EU. It would be better if Poland and the Polish government would be active in this area. Not only for carrying about rights of police as polish Ministry of Home Affairs, which is currently asking for a due to introduce directive of e-privacy retention rules (collecting data for police usage), but also for rights of the variety of users but also for respect for ourselves.
The internet does not need censorship. The internet needs to brush up on the rules which are and might be needed more in the future. We must look for solutions, but the law itself, especially fines, are not everything. Taking rights from moderators and limiting self-regulation is a mistake leading either to bureaucracy or opacity in which the people who spread hate speech and the creators of fake news will be feeling safer. The effect of the implemented changes will thus be the opposite of what they proclaim to be.
The key to solve all these difficult issues in the name of freedom and responsibility is trust. To trust and believe in the impartiality of institutions such as the Office of Electronic Communications and The National Broadcasting Council or, in upcoming time, courts, Law and Justice would have to stop being Law and Justice.