What makes this kind of topic so difficult to discuss is that much of the content Facebook was accused of harboring is unpleasant in the extreme: some of the pages that were mentioned in the complaint by the group Women, Action and the Media advocated violence against women, promoted rape, and made jokes about abuse (one of the tamer examples was a page called “Kicking Your Girlfriend in the Fanny Because She Won’t Make You a Sandwich”). No one in their right mind would argue that this kind of content isn’t offensive.

Facebook decides what speech is free

The larger problem in making Facebook take this kind of content down, however, is that it forces the network to take an even more active role in determining which of the comments or photos or videos posted by its billion or so users deserve to be seen and which don’t. In other words, it gives Facebook even more of a licence to practice what amounts to censorship — something the company routinely (and legitimately) gets criticized for doing.

To take just a few examples, Facebook has been repeatedly accused of removing content that promotes breast-feeding, presumably because it is seen as offensive by some — or perhaps because it trips the automatic filters that try to detect offensive content and send it to the team of regulators who actually police that sort of thing. The social network has also come under fire for removing pages related to the Middle East, as well as pages and content published by advocacy groups and dissidents in other parts of the world.

As Jillian York, the director for international freedom of expression at the Electronic Frontier Foundation, has pointed out, the entire concept of “hate speech” is a tricky one. In France, posting comments that are seen as homophobic or anti-Semitic is a crime, and Twitter is currently fighting a court order aimed at having the social network identify some of those who posted such comments. The company is resisting at least in part because it has staked its reputation on being the “free-speech wing of the free-speech party.”

It’s an increasingly slippery slope

Some groups have tried to convince Facebook that pages promoting heterosexuality qualify as hate speech, while others have complained that pages making fun of people who are overweight should fall into the same category. Many people would undoubtedly see the kind of content that Women, Action and the Media are complaining about as being clearly offensive in a way that these other pages aren’t — but not everyone would agree.

Where does Facebook draw the line on this particular slippery slope? Is it only the content that draws the most vocal criticism that gets removed, or the campaigns that influence advertisers?

As more than one free-speech advocate has noted, if popular protests about offensive content were what determined the content we were able to see or share a few decades ago, anything promoting homosexuality or half a dozen other topics would have vanished from our sight. There is at least a case to be made that the simplest course of action for a network like Facebook would be to only remove content when it is required to do so by law. But then what happens to the kind of content it just apologized for?

Private entities making their own rules

To its credit, the social network has tried to find other ways of discouraging these kinds of pages — including requesting page administrators to identify themselves (although the company’s “real name” policy raises some equally troubling questions). And while Facebook’s behavior looks and feels like censorship, it isn’t legally an infringement of free speech because Facebook is a corporate entity, and free-speech rules only apply to governments.

And that fact about Facebook — that it is a proprietary platform controlled by private interests — is part of what makes this situation so complex. For large numbers of people, the social network is a central method for connecting with and sharing information with their friends, a combination of water cooler and public square. But like Twitter, it is not a public square at all: it is more like a shopping mall, with private security that determines what behavior is tolerated what isn’t.

That’s not a problem when you want security to remove the people who are offending or disturbing you, or when you agree with the company’s decisions — but it’s quite different when you are the one who is being accused of being offensive or disturbing. And Facebook has provided plenty of evidence that it can make just as many wrong choices as it can right ones.

Post and thumbnail photos courtesy of Flickr user Hoggarazi

But, despite some recent examples, search engines are not supposed to be amongst the list.

Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Communications (Roskomnadzor) has issued a “clarification” to say Web search, image search, news search, video search and other content cached by search engines like Google, Yandex and Bing should not be included in the recently-launched Zapret web blacklist.

This is despite recent inclusion of Google image search and YouTube, which is put down to a “mistake” (via Roem.ru).

Such a distinction by the Russian government is an important one at a time when Google is facing growing international challenges to its long-held operating model. An Australian court ruled that Google search had been a publisher of material deemed defamatory, while a proposed German law would require Google pay a license to publish excerpts of third-parties’ news articles.

Some campaigners out there, like former Formula One boss Max Mosley, want Google to pro-actively strip out excerpts from “illegal” websites, alleviating complainants’ need to go to dozens of individual end sites to which Google points. But the Russian government’s position seems sensible since it blocks access to illegal material at source, not at the signpost.

Proposed in August and coming up for first reading in the Bundestag this Thursday, the Leistungsschutzrecht – or, ancillary copyright — would give news publishers the exclusive right to control re-uses of their output, requiring others obtain a license even to excerpt.

Google fought back on Tuesday by using a google.de homepage campaign to ask users to complain to elected representatives, casting the issue as one both of fundamental freedoms and of practicality: “For you, it would be so much more difficult on the internet to find the information that you seek. Defend your network.”

It is a mark of how seriously Google is taking the threat that it is trying to appeal to users’ emotions, enlisting them to fight the proposals. Google argues Leistungsschutzrecht will “damage the German economy” and “threaten the diversity of information”.

German publishers have formed their own counter-campaign…

Google is widely thought to be allowed to crawl news stories of which it republishes only excerpts. Emerging law may suggest otherwise — a Belgian court ruled in 2007 that it did not have the right to run such excerpts and UK copyright authorities this year ruled commercial news aggregators (though not free alternatives like Google News) must pay a license for doing so.

In Belgium, news stories were only returned to Google after a private commercial agreement between it and publishers. So German publishers may feel confident in seeking an equivalent arrangement. And that would challenge the widely-held belief in free online excerpting.

But Germany is not the only front on which Google is facing a threat to these core values on which it operates…

This week an Australian court ruled Google had defamed a man wrongly accused of being a criminal in a web page not hosted by but indexed by Google for its search results.

That contradicts the settled view of many legal jurisdictions that online platforms are not to be considered publishers of information placed by others, though is consistent with other case law that holds such platforms liable from the moment they are made aware of infringing material on their platform.

My colleague, paidContent legal correspondent Jeff Roberts, says this may make it more likely would-be litigants shop for victories in forums like Australia.

France also recently set Google a year’s-end deadline for agreeing to voluntarily pay news publishers — or  it may legislate that it must pay a levy for the privilege. Google told French ministers such a compulsion would “threaten its very existence”.

So now Google is battling challenge to two of its central tenets — that it is not a publisher and only excerpts parts of articles.

Asked why its members don’t just block Google using robots.txt, the Federation of German Newspaper Publishers on Tuesday said via Twitter: “Robots.txt is a standard from the internet stone age. Why doesn’t Google want to use (alternative standard) ASCAP ACAP, that is the question.”

Hollande had hinted during his campaign that he would consider changing or reforming Hadopi so that it was less repressive and more cooperative, winning him some fans but straining relationships with some protective industries. But, once he took power, he started a review of the organization — and in August the hint came that it would be scaling back funding for the policing of the web.

Now, however, it seems that Hadopi is fighting back — hard.

In a progress report on Wednesday, Mireille Imbert-Quarratta, who chairs the Committee on Protection of Rights (the group at the center of Hadopi), warned the government that it could not undercut funding for the agency without fundamentally undermining French law.

“Hadopi will take part in an effort to reduce its costs, as with all governments,” she said. “But we are an independent authority, and the Ministry cannot get rid of Hadopi or deprive it of funds, because it has been created by law. This would undermine the separation of powers.”

In fact, her argument went even further, drawing a comparison between an attempt by the French government in 1981 to try and effectively get rid of the death penalty by starving the execution service of money. That loophole failed, she pointed out, although it’s worth remembering that France did enact a law that got rid of the death penalty soon afterwards. But the warning was clear: try to kill off Hadopi by the back door, and you won’t find it easy.

So what next?

Campaigners have long opposed Hadopi, which they say can act as judge and jury over claims of copyright infringement, using unreliable evidence such as IP addresses, and putting the burden of proof onto the accused rather than on the state.

The government’s main practical arguments about Hadopi, meanwhile, are that it is expensive and largely ineffective. While the organization’s own internal reports suggest that 95 percent of the hundreds of thousands of citizens it has contacted have subsequently stopped filesharing, there is plenty of evidence to suggest that it has not been responsible for shifiting P2P use. And, two years after it was implemented, the first cases are only now going to court — potentially making it an extremely expensive deterrent.

It looks like the first real battle may come with those cases: the way the courts go could hand one side or the other a lot of political capital.

Police photograph courtesy Shutterstock user Jbor

Well, actually that’s slightly inaccurate: the draft law would make search engines pay for reproducing newspapers’ headlines and first paragraphs. So, take those away and the links are fine. Even if nobody will have the faintest idea what they’re linking to.

Google’s North Europe communications chief, Kay Oberbeck, sounded off about the issue this morning in a guest post for a German press agency. That was in German, of course, so I got him to vent in English as well:

“Nobody sees a real reason why this should be implemented,” he said. “It’s really harmful, not just for users who wouldn’t find as much information as they find now, but such a law is also not justified for economic reasons or judicial reasons.”

Oberbeck also pointed out the obvious: that Google send readers to the publishers’ sites. And that anyone who doesn’t want their content to be indexed by Google can just throw a robots.txt file in there. And that publishers make money off Adsense.

But wait, let’s back up. To appreciate the full absurdity of the situation, we should take in a little history.

The German publishing houses, particularly Axel Springer, are very powerful in their country, with relatively strong influence in government circles. As Matthias Spielkamp of the copyright news site iRights put it to me:

“If you look at the U.S., if print houses there want something, they are up against American companies like Google and Yahoo. Here we have local publishers that are enormously powerful and are trying to target U.S. companies. I wouldn’t say it’s anti-American – it’s just that German politicians are much more inclined to protect German publishers’ interests when balancing that with a [foreign] company or industry.”

A couple of years ago, a leaked draft showed what plans the publishing houses were pitching to their friends in the coalition government. The first official draft legislation showed up in April. What it proposed was breathtaking.

The government was calling for a form of ‘ancillary copyright’ to be brought in, that would force companies to pay publishers license fees for using their work in a commercial setting. As in, employers would have to pay up for letting their employees read the news online at work.

German industry bodies were predictably apoplectic, as were opposition parties, and the government beat a hasty retreat. The second draft, which appeared in the last couple of months, drastically narrowed the scope of the legislation, so that it would only apply to search engines.

So now Google is furious for being picked on, when it actually drives traffic to the publishers.

And the publishers aren’t happy either – Anja Pasquay, a spokeswoman for the Federal Association of German Newspaper Publishers (BDZV), told me that the second draft “won’t help”, and her organization would rather see a revival of the first draft.

So, with nobody happy, and with the government looking increasingly isolated, a third draft is rumoured to be in the works. That’s why Google is piping up now.

“An ancillary copyright would mean a massive damage to the German economy. It’s a threat to the freedom of information. And it would leave Germany behind internationally as a place for business,” Oberbeck told me.

“Publishers should be innovate in order to be successful. A compulsory levy for commercial internet users means cross-subsidizing publishers through other industries. This is not a sustainable solution.”

On balance, it’s difficult not to take Google’s side on this one. The whole idea of this kind of ancillary copyright is ridiculous, and it puts the likes of Axel Springer in a very poor light indeed.

It’s not as though Axel Springer isn’t plunging headfirst into the web industry itself – only today, it announced the purchase of an online news and classified portal.

The German publishing giants are big enough to compete in the real world. Sure, it’s tough monetizing free web content. But cooking up hokey and self-defeating new copyright laws is a pretty shabby way to go about it.

Anton Vickerman was convicted earlier this summer not under copyright law but of “conspiracy to defraud”.

He had profited from selling ads on his SurfTheChannel site, which he reportedly once attempted to sell for £400,000.

Guardian: “He is the first British man to be jailed in the UK for a website that linked to illegal copies of films and TV shows.”

“This case conclusively shows that running a website that deliberately sets out to direct users to illegal copies of films and TV shows will result in a criminal conviction and a long jail sentence,” Kieron Sharp, director-general of the Federation Against Copyright Theft (FACT), which jointly brought the case with the Motion Picture Association of America, says (via Guardian).

It appears the case fell not so much on the existential legal implication of hyperlinking but on whether the accused profited from that activity.

Yet the prosecution under a fraud charge rather than a copyright offence proves controversial to some…

“The way this issue was investigated, prosecuted and the resulting sentence are, deeply concerning, inappropriate and disproportionate given the activities that Anton Vickerman was engaged in,” writes Pirate Party UK leader Laurence Kaye, who does not hold office. “A four-year prison sentence is twice the maximum that could have been handed down if Vickers had been charged with online copyright infringement.”

Two years ago, an English court acquitted another man, Alan Ellis, accused of the same crime. He was charged with making $300,000 in donations from OiNK, a site dedicated to sharing music links.

A third man, Richard O’Dwyer, was not charged by UK police but faces extradition to the U.S., accused of running the separate site TVshack.net, which allegedly linked to sites illegally hosting movies and TV shows. O’Dwyer allegedly made £147,000 in ad sales from the site.

TorrentFreak: “The sentencing today definitely spells trouble for UK-based website owners who operate similar streaming sites.”

Aurélie Filippetti has commissioned former Canal+ pay-TV CEO Pierre Lescure to lead a wide-ranging and overdue review to update Act II of France’s so-called “cultural exception” – a set of rules for protecting Francophone culture – for the digital age, including the role of Hadopi.

Geeks are reading indications by the new Francois Hollande government as suggesting an axe for the agency, which was formed in October 2012 mandated by government in 2009 to send warning letters to ISP subscribers deemed to by rightsholders to be downloading content without authorisation.

Filipetti, in an interview with La Nouvel Observateur, only goes as far as promising to underfund Hadopi:

“I do not know what will become of this institution, but one thing is clear: Hadopi has not fulfilled its mission of developing legal content offerings.

“In financial terms, €12 million a year and 60 officers, it’s expensive to send a million e-mails.

“Finally, the suspension of internet access seems a disproportionate sanction against the goal. But all this will be considered by the Lescure mission.

“Meanwhile, as part of budgetary efforts, I will ask that Hadopi’s costs are greatly reduced for 2012. I prefer to cut funding for things whose utility is not proven. I will announce in September the details of these budget decisions.

“I cannot decide on the findings of a mission that just started. All stakeholders will be met and will share their views. It is essential to go beyond the framework of Hadopi and consider all mechanisms to adapt to the digital age.”

Filipetti’s views put her in line with Europe’s digital agenda commissioner Neelie Kroes, who is trying to smoothe content licensing regimes to create more legal digital content offerings across the continent and who recently urged French citizens to submit to Lescure’s consultation:

“Combating piracy is not done only by coercive measures. You are all, in fact, aware that I am not a fan of measures that punish individuals or families by cutting off internet access.

“The best way to combat piracy is to encourage the legal supply to satisfy the legitimate expectations of users. . So we must be very ambitious when it comes to creating a regulatory framework that promotes the development of legal offers online.”

Beside Kroes’ efforts, France’s cultural exception update is likely to reduce VAT on digital goods in line with the favourable rates applied to physical cultural products.

France’s Hadopi public agency, created to administer sending of warnings to alleged freeloaders, sent 755,015 first warnings to ISP subscribers in its first 14 months of operation.

Lescure’s review mimics a 2011 report that recommended updating the UK’s intellectual property laws for the digital age.

To recap, Twitter suspended Adams’ account several days ago because he posted the email address of an NBC executive as part of a stream of tweets criticizing the broadcast network and its Olympics coverage. According to Twitter, doing so was a breach of its “trust and safety” guidelines because the address was considered to be private (even though it was the executive’s work address). After widespread criticism of Twitter’s decision, Adams’ account was eventually reinstated on Tuesday, and the company’s general counsel Alex MacGillivray later wrote a blog post about the incident, in which he described what happened and apologized for how Twitter handled it.

Twitter doesn’t want to be seen as a publisher

As Matt Buchanan at BuzzFeed noted, however, it’s interesting to look at what Twitter apologized for and what it didn’t: the company didn’t apologize for suspending Adams’ account in the first place, despite the fact that the email address doesn’t really meet most tests of the term “private.” What MacGillivray apologized for was that a Twitter staffer — a member of the media team working with NBC on the official Olympics hub that Twitter runs in partnership with the broadcaster — was the one who alerted the network to the offending tweet, and instructed the company in how to file a complaint and have the account suspended.

This is important because it means that Twitter itself detected the offensive content and took action, rather than waiting for a user to report the message through the usual channels, and MacGillivray’s post goes to great lengths to make it clear that the company does not do this kind of thing on a regular basis, and will never (or should never) do so, saying:

“The Trust and Safety team does not actively monitor users’ content… we do not proactively report or remove content on behalf of other users no matter who they are… we should not and cannot be in the business of proactively monitoring and flagging content, no matter who the user is.”

MacGillivray says that the company doesn’t want to do this because it “undermines the trust that our users have in us” — and there’s no doubt that what Twitter did brings up all kinds of questions about how much of what the network does in such cases will be determined by its corporate partnerships with giant entities like NBC, rather than its commitment to being a distributor of real-time information. That’s a real issue for the company in the future, as I tried to outline in a recent post.

But in addition to all of that, proactively monitoring content and removing it also raises some fundamental issues around Twitter’s potential liability for such behavior (which probably helps explain why the company had its general counsel respond about the Adams case instead of a PR person or even CEO Dick Costolo). To the extent that Twitter is manually curating and filtering content that flows through the network — and possibly flagging offensive messages for corporate partners — it is acting as a publisher rather than just a distributor, and therefore it could be on the hook in a legal sense.

Publishers are treated differently than networks

In the United States, there are laws that protect internet providers of various kinds (what the U.S. Communications Decency Act calls “interactive computer services”) from defamation lawsuits and other forms of legal action based on comments or message posted by third parties. That’s because these kinds of services are defined as “distributors” or carriers of information — much like a phone company — and the idea is that a carrier can’t possibly read or listen to every message and check it for potentially offensive or illegal content.

If the company is filtering and selecting messages, however, and possibly letting certain parties know when a legally questionable one shows up, that is much more like what publishers do — and in many jurisdictions, publishers like newspapers are held to a different standard. Twitter has already been the subject of at least one lawsuit based on that principle: in Australia, a TV personality sued the network earlier this year for publishing allegedly defamatory tweets about her, and at least one lawyer commenting on the case made a direct comparison between what Twitter does and what a newspaper does, saying:

There’s not a lot of difference conceptually between Twitter or other internet publishing and an airmail copy of a newspaper; it’s just quicker.

So far, these kinds of cases have been few and far between. But the Adams case, and MacGillivray’s response to it, makes the point that this could be a significant challenge for Twitter in the future. Not only does it have to find some way to navigate between the demands of its users and the necessity of catering to advertisers and/or corporate partners like NBC — while still upholding its self-declared status as the “free-speech wing of the free-speech party” — but it has to be careful not to become too much of a curator or publisher of content, or face the potential legal liabilities that all publishers face. Welcome to the realities of being a media entity, Twitter.

Post and thumbnail images courtesy of Flickr users Hank Ashby and George Kelly

Now, however, the man in charge of reviewing the law says he disagrees with one of its central propositions.

Pierre Lescure, the former head of TV network Canal+, was given the task of examining the Hadopi legislation earlier this year. He’s due to report back next spring with recommendations to improve the rules. Lawmakers say have been working well, although critics remain skeptical.

Speaking at an event in south-east France, Lescure revealed some of his opinions on the subject, suggesting he was “opposed to cutting internet access” – the sanction that is ultimately meant to be the culmination of Hadopi’s three-strike policy.

“Hadopi didn’t take into account the demands of internet users,” he said at the Altair Thinktank‘s Université Ouverte (Open University) event in Avignon, adding that people want something with “immediacy and universality that is more or less free”.

His comments will come as music to the ears of those who have campaigned against Hadopi, but those imagining that he may recommend a repeal shouldn’t get too excited. At the same time as criticizing the law, Lescure also suggested that taking sanctions against users accused of illegal filesharing was a crucial part of the process:

P Lescure : “la sanction est indispensable mais insuffisante, il faut développer au maximum l’offre légale” #Hadopi #universitéouverte

— Altaïr ThinkTank (@AltairThinkTank) July 16, 2012

“Punishment is necessary, but it is not sufficient,” he said. “We must maximize the legal provisions.”

Indeed, he went on to point out that l’exception culturelle, the concept used by government that treats culture differently from other sorts of industry in order to preserve a distinct sense of Frenchness, is utterly reliant on intellectual property laws.

“The French cultural exception is based on copyright protection,” he said.

What exactly does that mean? That’s what are waiting to find out. New president Francois Hollande may have hinted that he would like to strike out Hadopi, but we won’t know whether Lescure will deliver that pitch for a while yet.

In many countries, printed books and other content artefacts enjoy reduced VAT rate exemptions for cultural reasons. But digital equivalents are mostly not exempted.

This year, France moved e-books outside the country’s standard 19.6 percent VAT bracket, putting them on a footing with physical books’ seven percent rate. Luxembourg also reduced e-book tax from its 15 percent countrywide rate to just three percent.

But the European Commission has now begun investigating the countries for potentially breaching “infringing EU law”, saying:

“This situation is creating serious distortions of competition that are damaging to economic operators in the other 25 Member States since digital books can easily be purchased in a State other than the one where the consumer resides…

“Local actors in the electronic book market have complained that some of the dominant players in this market have reorganised their distribution channels to benefit from these reduced rates, which has apparently had a serious effect on the sale of books (both digital and traditional) in the other Member States in the first quarter of 2012.”

The EC’s technocratic action creates a rare anomaly in which it appears to be acting against consumers’ wish to buy books as cheaply as possibly across borders – something EC digital agenda commissioner Neelie Kroes’ agenda has specifically set out to achieve in her aim to create a single European digital content market.

And it is an issue that is more widespread than just books. Digital newspapers, for example, typically do not benefit from the special VAT reductions applied to their printed forebears, putting them at a price disadvantage with old-line products.

The EU allowed member states to reduce book VAT in 2006. This week, however, the EC said: “Downloading of digital books … is not included in this list and cannot therefore be taxed at the reduced rate.” In truth, the EU’s 2006 mandate did not specifically disallow digital book reductions, and was absent of any distinction between physical and digital at all. No wonder individual countries are deciding, for themselves, “a book is a book”, regardless of medium.

This kerfuffle may be short-term. The European Commission says it will put forward proposals by the end of 2013 for making printed and digital book rates equivalent. For now, however, individual countries that act sooner may be deemed lawbreakers.