Now that the election has come to an end, let us revisit the “Digital Intermediary Service Act”

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Digital Intermediary Service Act, On June 29 this year, the NCC renamed the overhauled “Digital Communications Act” to the “Digital Intermediary Service Act” and released the relevant draft text .

Perhaps it is because the content of the draft provisions “references” the provisions of the EU DSA and other foreign laws and regulations. The provisions are extremely complicated and professional, and the relevant content did not receive much attention from all parties at the beginning. It was not until the NCC held the second and third public hearings on August 16 and 18, inviting representatives of non-governmental organizations, industries, and public associations, that the possible impact of China and France on Taiwan’s Internet governance was finally recognized. seen by all sectors of society.

Soon, mixed with strong dissatisfaction with the ruling party in the local elections and opposition camps, coupled with the rare joint statement of several major industry associations, the voices of “numbers, China and France to clamp down on freedom of speech” suddenly hit like an overwhelming wave, which also made Dean Su had to express his opinion quickly: “The Executive Yuan will not support and promote such a bill without consensus . ” Seeing that the draft created a strong political storm, the NCC had to announce the cancellation of the fourth public hearing, and return the draft to the NCC committee for further discussion.

After a few months, the EU digital service law DSA, which China and France refer to, was officially launched on November 16. Large-scale platforms and search engines must complete the declaration of the number of users in February next year. In the future, platforms will be regulated according to the draft regulations. All norms will apply to all member states of the EU by February 2024 at the latest.

 

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Purpose and Controversy of Digital Intermediary Services Law?

The legislative purpose of the Digital Intermediary Service Law reads: “Protect digital basic human rights, promote the free flow of digital communication and service provision, implement the accountability of digital intermediary service providers and protect the rights and interests of users, so as to establish a free, safe and reliable “Digital Environment”, hoping to redefine the responsibilities of online platforms through governance means such as government, platform self-discipline, and public-private cooperation, hoping to reduce the confusion caused by illegal and false information , as well as crimes such as the distribution of private images on the Internet .

However, after its launch, it caused mixed reviews from the outside world. Positive opinions affirm that the government takes action to manage complex Internet issues; negative opinions worry that freedom of speech will be suppressed.

Pearson Internet polls show that two weeks after the Executive Yuan announced that it would stop promoting the law, as many as 57% of the people still do not support the government’s enactment of a digital intermediary service law to strengthen the management of illegal information on online platforms; at the same time As high as 63% of the public said that they do not trust the judgment results of various government departments on illegal information. It is obvious that the public’s general dissatisfaction with the law and the measures to restrict speech is indeed quite strong.

Those Overlooked Advances in Digital Intermediary Services Law

In fact, the China-French draft covers a wide range of issues, and the time for discussion before the election is extremely limited. Due to the passion of opposition between political parties and society, the space for rational discussion has been greatly compressed, which is not conducive to the discussion of Internet governance issues in Taiwan. deepen.

The Digital Intermediary Service Law has formulated a series of framework legislation for the purpose of protecting digital human rights. Article 15 of the draft requires digital intermediary service providers to announce the terms of service in a clear and easy-to-understand manner for users to read; Article 16 of the draft legalizes the “transparency report” that some operators are already doing, requiring digital intermediaries to The amount and type of information required by the government, the self-regulatory norms adopted for illegal content, and the cooperation mechanism with third-party fact-checking agencies are regularly released for public inspection, which is conducive to improving the transparent governance of digital services in Taiwan.

Article 18 of the draft is the most controversial, we will talk about it later, but at least the NCC is willing to hand over the power of restricting illegal speech to the court to make a ruling, regardless of whether the legal requirements for the court’s ruling are complete and whether the manpower is sufficient, but this legislative model is still It is to set a bottom line for the protection of the basic right of freedom of speech, and the direction is still worthy of recognition. Article 21 stipulates that courts, administrative agencies, and digital intermediary service providers should publish relevant information flow restriction measures in a designated common database to facilitate public inspection and supervision.

Chapter 5 requires information storage service providers to establish a “notification and response” mechanism, through which future users can report illegal content, and the result of the report will also be notified to the reporter. Chapter 6 superimposes the obligations of online platforms. Most people often encounter “you have been ancestral” but do not know the reason. Article 24 regulates that online platforms should provide “objection measures” and stipulate the relevant provisions on the relief period and restoration of the original status , to protect the basic rights and interests of users.

Yes, you read that right, these are some of the 58 provisions of the draft Digital Intermediary Service Law, which may not be the same as what you want to simply restrict freedom of speech and control fake news.

 

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Tightrope Walking Information Restraint Order and Temporary Apostille Warning

However, even though many of the aforementioned progressive provisions should not be easily ignored, this does not mean that the problems raised by previous stakeholders do not exist. On the contrary, these doubts should not be wrapped up and sacrificed under the general framework of “protecting digital human rights and improving user rights” in China and France.

Article 18 of the draft authorizes the competent authorities to apply to the court for an information restriction order if they believe that the relevant information is illegal, in order to avoid or mitigate the harm to the public interest. Before the court makes a ruling, the competent authorities can impose a temporary warning on the information for up to 30 days. This article involves restrictions on freedom of speech, and has also aroused the greatest concern from all walks of life.

First, although the draft leaves the jurisdiction of information restraint orders to the courts, it still makes people uncomfortable that it broadly authorizes all administrative agencies to issue information restraint orders with respect to the regulations under their jurisdiction.

If during the election period, the competent authority applies for an information restriction order on specific speeches and at the same time requires the platform operators to temporarily add warnings for up to 30 days, it may inevitably be questioned about affecting election discussions. Therefore, considering the seriousness of the principle of felony or the infringement of legal interests by specific information, limiting the information restriction order to the types of crimes involving national security and major criminal cases may be the first necessary check, and it can also avoid specific administrative regulations. The agency has concerns about abusing the petition (in recent years, the social order maintenance law and the special epidemic law are not far behind).

Secondly, what elements should the court consider in practical operation? Whether the court has enough manpower to deal with the transfer of organs is also a big problem. The NCC should consult the Judicial Yuan for its legislative opinions as soon as possible, so as to prevent the concept of court procedural protection from becoming wishful thinking in the process of future law amendments or actual implementation.

Furthermore, whether it is really necessary to temporarily raise the warning can be considered again. The Taiwan Rights Council’s comments pointed out tha the legislative reason for temporarily adding warnings is based on the EU’s 2018 Audiovisual Media Services Directive, but the original text of the directive neither targeted false information nor required warnings.

The directive mainly targets hate speech that causes violence based on race or skin color. The provisions quoted in the draft only require the provision of media reading methods, rather than the addition of warnings, which shows that NCC still has obvious deficiencies in transnational comparative law transplantation and policy persuasion.

Even though the competent authorities have repeatedly emphasized that adding warnings is only a “reminder that speech may involve illegality,” the public power of the state is still cautious in marking specific speech. Whether the “marking of suspected illegal information” will actually increase the degree of attention of relevant speeches and promote its mass dissemination (especially those involving political stances mixed with suspected illegal information), there should still be a more appropriate and complete assessment .

 

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Platforms May Restrict Free Speech to Protect Their Own

In addition to Article 18 of the draft and other provisions derived therefrom, another provision that may restrict freedom of speech comes from whether the safe harbor clause is clear.

Article 11 of the draft stipulates that information storage service providers (most large platforms will apply) stipulate that if (1) they are not aware of the suspected illegal content and rely on the facts when others claim damages, they cannot detect that the content is obviously illegal. (2) Immediately remove the information or restrict access after becoming aware of the illegal content. Item 3 of Article 22 of the same draft also stipulates that anyone who uses the notification mechanism to notify the service provider of illegal information will be deemed “knowledgeable”.

Industry representatives said at the public hearing that the platform has almost no ability to judge true and false information . If there are too many “knowledgeable” situations, the platform can only delete them all in order to avoid liability. In addition to the stipulations on the exemption requirements, whether the penalties stipulated in Chapter 10 of the Chinese Law are too strict may have a negative impact on the current governance of speech in the online world, which needs more discussion and more specific discussions among stakeholders. Policy Impact Assessment.

 

Many Controversies and Details Still to Be Resolved: The Unfinished Business of Internet Governance

There are many other details, such as whether the definition and classification of connection services, quick access services, and information storage services in the draft are clear; whether it is appropriate to include human communication services in connection services; The authority of data retrieval and related issues all depend on more discussions and amendments in the future.

In order to control illegal information or specific criminal activities, fully support the Digital China and France, or label the Digital China and France as an East Factory, and Internet martial law is unnecessary and will not help the progress of Taiwan’s Internet governance environment.

Maybe now that the election has come to an end, if we revisit the Digital Intermediary Service Law, we will have different feelings and expectations.

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