Internet Provider Perspectives on EU Digital Single Market
The Internet Infrastructure Coalition (i2Coalition) supports those who build the infrastructure of the Internet, and treat it like the noble profession that it is. We believe the continued growth of the Internet is vital for growing an environment of innovation and seek to engage in ways to foster success of the Internet and Internet infrastructure industry. We seek to influence decision makers to weigh decisions on whether they are good or bad for the Internet economy and its foundational industries. In short, we seek to foster growth within the Internet infrastructure industry by driving others to harness the Internet’s full potential. We are happy to be engaging with the EU on their efforts to form a Digital Single Market, which we support. In particular, we are pleased to provide them with essential information on important issues from the perspective of those who build the Internet.
Three example areas in which the Internet infrastructure industry seeks to advise the EU revolve around issues of intermediary liability, domain name abuse and technology standards. A basic perspective on each is provided herein.
Intermediary liability issues:
There is a distinction between the user of services, and the provider of those services. Online intermediaries play a unique place in the Internet ecosystem. They provide the addresses, transmission, dissemination points, postal services, and facilities for interaction for the Internet. In essence, they are the roadways, interchanges, petrol stations and rest stops facilitating data transmission and online commerce. This analogy aptly describes the scope and breadth of what online intermediaries do. What they all have in common is that they provide a mechanism for one person, or entity, to interact in some way with another. That interaction could be as simple as sending an email, or as complex as trading securities.
It is important to keep in mind the vast nature of the Internet intermediary, or infrastructure, world. In most cases, one intermediary provides only a small piece of a complicated transmission structure. Creating a “one size fits all” or even a “one size fits many” liability will capture infrastructure providers unrelated to the target of the liability regime. These regimes will also likely chill business development. The vast majority of Internet infrastructure providers are small to medium sized businesses. Imposing liability for data that they have no hand in creating creates a significant impediment to new business.
The entity best placed to make a judgement on content is a court or other judicial body. Internet intermediaries do not generally have the ability or resources to make determinations about nuanced issues such as intellectual property. Importantly, Internet intermediaries do not have the resources to make these determinations. In a highly competitive and fragmented business, such a requirement would pose not only a significant barrier to entry, but also a cost unrelated to the intermediary’s core business. It would also result in highly disparate, and possibly contradictory interpretations of intellectual property and other concepts. A uniform understanding, and interpretation, of these concepts is not only important for Internet intermediaries, but also for content providers. The Internet Infrastructure Coalition recommends that those taking issue with content work first with the entity responsible for placing the content with the intermediary. Doing so is the most efficient and effective manner of addressing further dissemination.
Screening for content often involves subjective determinations that are best left to courts and law enforcement agencies.
Domain name abuse resolution issues:
The Internet Infrastructure Coalition strongly supports the Uniform Domain Name Dispute Resolution Policy, or UDRP. The UDRP was adopted by ICANN in 1999 and has successfully resolved many disputes in a time efficient, cost effective, manner. Rather than relying on one resolution provider, the UDRP process uses many providers. The ability to choose providers has led to a process that continues to ensure efficiency and trustworthiness in its results. The trusted nature of this process can be seen in its global reach and acceptance.
Internet companies have a particular incentive to disclose and provide access to a significant amount of information. Those companies who have understandable and transparent policies tend to be more attractive to users. In addition, current EU legislation has created an environment in which best practices to develop. Directive 95/46/EC has specific obligations to inform users of collection, processing, identity and processing purpose. The GDPR will build on these obligations. In conjunction with market incentives to disclose information, the addition of further requirements does not seem necessary.
Technology standards issues:
Internet infrastructure providers have a vested interest in the ability of customers to move from one platform to another. In a highly fragmented market with intense competition and multiple programming languages, customers demand the ability to move their data at their request. Further, creating an environment where a customer was locked in would likely result in a business that while possibly initially successful, would alienate potential customers. More importantly, failure to adopt common platforms limits the addressable market since a significant part of an infrastructure provider’s new growth comes from currently existing programming languages. These aspects of portability have evolved, robustly, without regulatory guidance. Rather than facilitating customer choice, regulatory guidance would create “lock-in” by favoring one platform, programming language or set of features over others. It may also deter investment in the Internet by requiring disclosure of proprietary information or trade secrets, or by requiring companies to share information they have developed about the use of their services with competitors.
The experience of our members is that of transparency, innovation and portability. Contract review, understanding of company goals and options, and have led to a stable, understandable, portable infrastructure marketplace. The ability to access data has been assured by competitive needs, programming requirements and market forces. The speed of innovation in the Internet economy does not favor the creation of proprietary or unique Internet platforms. Rather, it favors those interoperable open systems that embrace the desire of customers to innovate and require Internet companies to compete on features, price and reputation.
We look forward to continuing to engage the European Union as it pushes forward on its consultations towards a Digital Single Market for Europe.
