Commissioner Oettinger’s facepalm-worthy interview about data retention, copyright, net neutrality and Co.

Wenn ein facepalm nicht reicht. Oder zwei, oder drei…

Today’s interview with the EU Commissioner for Digital Economy and Society, Günther Oettinger, with Markus Keßler at futurezone.at was one of the most shocking ones so far in terms of unreflected statements and the total lack of a factual foundation. Therefore we want to make it accessible not only for German speaking persons. Everyone should be able to unmask the appalling ignorance of Oettinger’s „opinions.“


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We publish our translation with the kind permission of futurezone.at. Translation provided by Adrian, Kathrin and Anna. Thanks for that!

futurezone: You recently proposed a „right in rem“ for digital goods. Does that mean you want to put digital goods on the same level as physical objects?

Günther Oettinger: Udo Jürgens was a mental craftsman. He himself wrote songs and got wealthy – Because he felt safe that someone who enjoyed his music did pay for it. We’re working towards a new copyright law and we’ve already created many prerequisites. We want to submit a proposal in October.

Nobody wants artists not to be paid. The problems are located elsewhere: To what extent am I allowed to copy something I bought…

For example geoblocking. Ask your country’s film industry. They say: „If we had only one European market there’s no chance we’d be able to produce our movies. There would only be Hollywood.“

Isn’t that tilting at windmills? Every kid with an access to a VPN (Virtual Private Network) can bypass this kind of blocking.

Let’s just wait. I try to maintain the balance. You are a taliban in this matter. If I’m at the airport in Vienna and five Austrian filmmakers approach me with this topic then I have to allow for this. I want Austrian film making as cultural goods…

You think geoblocking is the road to success?

I dare to do this. The soccer players, too, by the way. You wouldn’t assume Austrian soccer which is mediocre could keep up if there would only be one market? If so, the match Salzburg against Austria Wien would only be a secondary one. There would only be Real [Madrid] against Barca.

You’re a supporter of net neutrality. However you’re making a case that there should be some exceptions, e.g. when it comes to self-driving cars and emergency call systems. That’s what the telecommunications industry wants, too. Yet no company would implement a structure with vital systems depending on an internet connection.

Car companies are referring to these arguments.

BMW e.g. says, such systems are constructed entirely independent from the internet.

Let’s wait and see. At the moment we are evaluating, which specialized services require a guarantee of quality and speed. We are evaluating three specific possibilities: Emergency call systems, health services and traffic services. But I did not make a decision yet. I want to hold a debate if neutrality exceptions in the interest of everyone are necessary. The burden of proof is with those who want to offer the services.

What do you reply to the counterarguments?

I don’t have to defend what is not needed. I am a normal citizen myself and I also want the utmost neutrality. This topic is to be debated as part of the Trialogue of the Council regarding the Telecoms Single Market directive.

How do you want to detect which data packets belong to the exceptions. With Deep Packet inspection?

We have regulators in Germany and Austria that are able to do this. For a perfect net neutrality without exceptions there also have to be controls.

To do this you wouldn’t have to look into the packets.

Right, but the corresponding service providers already have certain duties of confidentiality they comply with. The member states could control compliance with the European directive on a random sampling basis. Apart from that we would wait for complaints to intervene and examine. For that we would have access to data otherwise anonymous and confidential.

How do you assess the new proposal for data retention in Germany, especially in light of the European Court of Justice’s ruling against data retention?

The ruling of the European Court of Justice was very comprehensive and surprising. Therefore we asked our experts to take their time evaluating the ruling in order to develop a new proposal. Our time plan hints at the second half of 2016. German government sees the topic as urgent and decided to make a new proposal with ten weeks storage period for Germany.

Do you think the proposal is reasonable?

I don’t know the text yet. But I will talk about it with the [German] minister of Justice Maas. In the question if it should be ten weeks or six I will follow the advice of experts knowledgeable in the area of law enforcement.

The fight against terrorism is often used as an argument for data retention. But according to research data retention is not particularly helpful in this matter.

When it comes to case numbers, you might be correct. But our experts from the police say that crime detection became more efficient. The union representatives of police officers want these tools. They do not earn more money. There are no incentive payments. They also can’t hang the data to their walls at home.

Data retention is only talked about when it comes to criminal offenses but detection rates don’t justify that. Aren’t these arguments pure populism?

Maybe detection rates would have been lower without these possibilities. Aside from that, it’s not only about investigating crimes which have already been committed but also about preventing criminal offenses in a planning stage. If an expert on internal security demands this tool I want to make it available to him. You can still retract the tool afterwards.

But if authorities are in doubt about a case they have different means at hands anyways. You can’t really rationalize the fact that data preservation would equal generalized suspicion.

That’s true. If you’re monitoring someone with CCTV in Vienna’s first district that’s also a generalized suspicion that everyone wandering the streets during night-time might be a shoplifter. It’s always about consideration. Being a citizen, I say: I think the invasion of my privacy is justifiable.

What do you think about the tougher approach of your colleague Vestager when facing Google in terms of competition procedures?

The commission has the obligation to check if the market participants follow our rules. If they don’t, we act on complaints. Our preliminary finding is, that the way Google does business, it breaks important rules of the European single market. We think of Google as qualified. It is a service provider that we need. But this service provider needs to maintain neutrality and objectivity and has to work without discrimination. Seeing Google as having 80 to 90 percent market share it is our duty to be very sensible about that. Google has ten weeks to bring forth counter arguments. After that, we will return a verdict.

If Google splits its business model, your demand for neutrality would still not be fulfilled. Do you promote special regulations?

If our provisional market evaluation turns out to be final, Google would need to receive a written warning with the possibility of also receiving a fine. We expect, that businesses act within our rules if they want to participate in our market. Else, there could be another procedure. Worst case, a market participant will be excluded from the single market.

But are your demands for net neutrality also applicable for search results?

Certainly, it is not possible to create a completely neutral expectancy. Our goal is to prevent deception and manipulation of the user, which he might not even be aware of.

Despite your failed attempts in Germany and Spain regarding a European ancillary copyright, do you still promote that idea?

Practice has proven that the German ancillary copyright is not effective. While working on reforming the copyright laws, we will evaluate if we are able to build an equally working set of rules within Europe.

In Spain, Google decided to rather end their news search instead of paying to be able to do it. Do you think that you can force conditions on Google?

For that I don’t have a final answer. But Google has an interest in being able to to business within the European market. The company will think really hard about the decision, whether or not they want to start a fight with us.

In Principle, do you think its okay that publishing companies want to have money from Google, even though they would also profit from the offerings?

I would like to give the content providers, in this case the publishers, the ability to decide on their own, if they want to share permit the sharing of their content.

They can already do that.

Legally speaking yes, but in fact they can’t. I would like to enable them legally and factually to decide freely, whether they want to trade a product in exchange for money, or if they, for marketing reasons enable a third party to share the content without being paid.

What brings us back to the topic, which rules should be applicable for search engines? It seems that in this regard you also have higher demands for Google. Does a public assignment for search engines exist?

In my opinion, Google’s market position is so dominant that it’s not only about private services. Such a position comes with special obligations.

How is the data protection reform coming along?

Almost for one and a half year now, there has been stagnation in the EU Council. Now the member states are working very constructively and go along fine by moving from section to section. I predict that the new data protection regulation will come into effect before this year ends.

You say, in interest of a solution for the whole European Union, Germany needs to cut down its data protection laws. Wouldn’t this compromise lead to a diluted solution for the EU?

As we speak, the big online service providers move to Ireland and only follow their data protection laws. I would rather have a ruling for the EU, even if that means that the level of data protection will sometimes be lower than the level of data protection in Germany. Then we could send warning letters and penalize throughout Europe.

Having citizens in mind, shouldn’t the highest standard be the goal?

„Highest standard“ would mean data protection without limitations. If you go that far, your data wouldn’t be usable anymore. That’s why a balance is needed. The best data protection is for naught if the citizen stands in the Telekom store, buys an iPhone from Apple, and doesn’t read the general terms and conditions.

When you first started in your new position, the media accused you of not having enough viable experience in the digital world. Since then, how has your digital daily life changed?

My predecessor was ten years older. How do people get the idea to accuse me of being too old? I once was energy commissioner, where people made the exact same accusations. I do have a great staff filled with experts and I’m still able to learn. You don’t need to be able to be a software-engineer to formulate regulations for the digital sector.

Didn’t your daily digital life change?

No. My usage of smartphone, e-mails and sms has remained the same. But I did learn many new words. Each sector has its own special expressions. That is the most normal thing in he world.

Weitersagen und Unterstützen. Danke!
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