Elda Brogi Giovanni Gangemi CMPF Summer School 2013 for Journalists and Media Practitioners http://cmpf.eui.eu/training/summer-school-2013.aspx

1. Summer School for Journalists
and Media Practitioners
Search engines, news aggregators
and intermediaries
Elda Brogi
Giovanni Gangemi
Summer School
Florence, EU (Sala Teatro)
14/05/2013

2. Intermediaries, who are they?
Internet intermediaries bring together or facilitate transactions between third
parties on the Internet. They
a) give access to,
b) host,
c) transmit
d) index
content, products and services originated by third parties on the Internet or
provide Internet-based services to third parties (OECD, 2010).

3. Intermediaries, who are they?
Internet access and service
providers
Web hosting
Search
engines and
portals
E-commerce
intermediari
es
News
aggregators
Social
networks
App stores
Third-party producers of content, products and services
Users or consumers of content, products and services
Payment
sysyems

4.  Select and aggregate content according to neutral, automatic
systems
Aggregators
search engines
& portals
Participative
network plat.
App stores
 Aid in creating content and social networking
 Aid in navigation on the internet
 electronic retailers for news content and apps
Web Hosting
 Transform data prepare data for dissemination or store data or
content on the Internet of others
ISPs
 Provide access to the internet to households, business and
government
E-commerce  Enable online buying or selling
Intermediaries, what do they do?
Payment
systems
 Process internet payments

5. Aggregators
search engines
& portals
Participative
network plat.
App stores
Web Hosting
ISPs
E-commerce
Intermediaries, what do they do?
ThirdpartiesConsumers/users
Transactions Information
Payment
sysyems

6. Intermediaries, a possible map

7. Main features
 Mere conduit
 Caching
 Hosting
 Lack of editorial control
 Neutrality
 Automation

8. Lack of editorial control
 Intermediaries do not have any control on content
 No influence on timing the content is delivered (it depends on the users…)
 No influence on the quality
 No (direct) influence on the ranking (?)

9. Neutrality
 Do they have too much judgment (designing algorithms, defining
customised results for users…)….
 ….or should they take more responsibility?
 Is the lack of judgment a totally neutral approach? Or can it be considered
intentional?
 Internet bias: can advertising affect the neutrality of intermediaries? (e.g.
TV)

10. Automation
 Automation is when the conduit is merely technical and there is no human
intervention.
 It occurs when there is a lack of knowledge or control on stored data
 “Google would not permit any human editing to refine the results” (Randal
Stoss)
 ISP have less opportunities to impose editorial control

11. Concerns about news intermediaries
 Bottlenecks of distribution of news: intermediaries control the
way users can access to news
Control the
access to news
Selection /
influence news
agenda
Impact future
economic models
Influence
political agenda
 The way these players may impact on news supply
 The way intermediaries chose, select and promote news
(content) can influence the news agenda and the
newsworthiness criteria
 The way they influence the political agenda as a result of the
role they play as distributors of news

12. News suppliers need intermediaries (?)
 In the digital economy, profits can be generated only if there is a wide
market.
 Intermediaries can play an important role for news suppliers because the
allow them to reach a wider audience
 Intermediaries are becoming an increasingly important source of
information for news suppliers.

13. Business models of intermediaries
 Intermediaries mainly base their business on advertising. Intermediaries
are typically two sided markets.
 Advertising is the main source of revenues for search engines and social
networks
 But revenues can be generated also using visibility to promote other
services (i.e. Google can give priority to its services, such as Maps, by
ranking them highly in the search results).

14. The offline news value chain
Photo &news
agencies
Journalists
photographer
Content
creation
RetailerPrinting Wholesaler Reader
Content creation Manufacturing Physical distribution
Advertiser
$
$

15. The online news value chain
Photo &news
agencies
Journalists
photographer
Content
creation
Aggregator
Wholesaler Reader
Advertiser
Content creation
Manufacturing /
Automation
Distribution
?$
$
?$
?$

16. Where is the advertising going?
0
1.000
2.000
3.000
4.000
5.000
6.000
7.000
8.000
2007 2008 2009 2010 2011
France Germany Italy Spain UK
 Aggregators & search engines are boosting their revenues
 Advertising on newspapers is dramatically dropping
 What correlation between these two phenomena?
-
5.000
10.000
15.000
20.000
25.000
30.000
2007 2008 2009 2010 2011
million €
Google Facebook
Cagr: +26% Cagr: -8%
Aggregators, search engines, portals Newspapers’ advertising

17. The winner takes all
 It is difficult to set competition within the intermediaries
 Network effects: the more inclusive a social network is, the better it works
 The bigger a search engine is, the largest number of search result it will
provide
 Scales economies: intermediaries are based on technical tools (i.e.
algorithms) that can be used worldwide. Any additional can be added at no
additional cost
 This makes markets very concentrated: Google is now 7 times bigger than
its competitor Yahoo!

18. The lack of investment in original content
 Intermediaries, and in particular aggregators, seem not to be interested
in producing their own content and are rarely involved in content
production,
 However, there is a difference between the ones who exert some form of
editorial control (e.g. Yahoo! News) and pure aggregators (e.g. Google).
 These players challenge traditional media outlets moving online (BBC,
CNN, FOX…).
 The lack of resources allocated in new content induces a systematic re-
use of existing content.

19. Some hints from a legal perspective
 The directive on electronic commerce 2000/31/EC sets up an
Internal Market framework for electronic commerce
 The directive sets some rules on liability of intermediaries
 mere conduit
 caching
 hosting

20. E. commerce directive: mere conduit
 Art 12 Where an information society service is provided that consists of the
transmission in a communication network of information provided by a
recipient of the service, or the provision of access to a communication
network, Member States shall ensure that the service provider is not liable
for the information transmitted, on condition that the provider:
 (a) does not initiate the transmission;
 (b) does not select the receiver of the transmission;
 and (c) does not select or modify the information contained in the
transmission.
 possibility for a court or administrative authority, in accordance with
Member States' legal systems, of requiring the service provider to terminate
or prevent an infringement.

21. E. commerce directive: caching
 Art 13 service provider is not liable for the automatic, intermediate and temporary
storage of that information, performed for the sole purpose of making more efficient
the information's onward transmission to other recipients of the service upon their
request, on condition that:
 (a) the provider does not modify the information;
 (b) the provider complies with conditions on access to the information;
 (c) the provider complies with rules regarding the updating of the information,
specified in a manner widely recognized and used by industry;
 (d) the provider does not interfere with the lawful use of technology, widely
recognized and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information
it has stored upon obtaining actual knowledge of the fact that the information at the
initial source of the transmission has been removed from the network, or access to it
has been disabled, or that a court or an administrative authority has ordered such
removal or disablement.

22. E. commerce directive: hosting
 Art 14 Where an information society service is provided that consists of the storage of
information provided by a recipient of the service, Member States shall ensure that the
service provider is not liable for the information stored at the request of a recipient of
the service, on condition that:
 (a) the provider does not have actual knowledge of illegal activity or information and, as
regards claims for damages, is not aware of facts or circumstances from which the
illegal activity or information is apparent; or
 (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to
remove or to disable access to the information.
...
 3. This Article shall not affect the possibility for a court or administrative authority, in
accordance with Member States' legal systems, of requiring the service provider to
terminate or prevent an infringement, nor does it affect the possibility for Member
States of establishing procedures governing the removal or disabling of access to
information.

23. No general obligation to monitor
 Art 15 1. Member States shall not impose a general obligation on providers, when
providing the services covered by Articles 12, 13 and 14, to monitor the information
which they transmit or store, nor a general obligation actively to seek facts or
circumstances indicating illegal activity.
 2. Member States may establish obligations for information society service providers
promptly to inform the competent public authorities of alleged illegal activities
undertaken or information provided by recipients of their service or obligations to
communicate to the competent authorities, at their request, information enabling
the identification of recipients of their service with whom they have storage
agreements.

24. Some cases of the CJEU on the role of ISPs:
2008 Promusicae-Telefonica Case C-275/06
 The court held that European law does not require Internet service
providers (ISPs) to disclose their subscribers’ identities to trade
organizations for the purpose of civil litigation against them.
 Confidentially obligation to be limited where this is necessary to protect the
rights and freedoms of others, including property rights in situations where
authors are seeking to obtain protection of such rights before the
competent courts. EU law does not preclude the possibility for the Member
States of laying down an obligation to disclose personal data in the context
of civil proceedings.

25. 2011 Sabam-Scarlett C-70/10
 Case on the installation of a system for filtering electronic communications
in order to prevent file sharing which infringes copyright
 No general obligation to monitor information transmitted. EU law
precludes a national court from ordering an ISP to install a general
filtering system with the aim of preventing the illegal downloading of files…

26. …
 prohibition laid down in the E-Commerce Directive, under which national
authorities must not adopt measures which would require an internet
service provider to carry out general monitoring of the information that it
transmits on its network.
 In this regard, the Court finds that the monitoring injunction in the case
between SABAM and Scarlet would require Scarlet to actively monitor all
the data relating to each of its customers in order to prevent any
infringement of intellectual property rights. Such a general monitoring
request is incompatible with the E-Commerce Directive and with the fact
that the right to intellectual property is not to be regarded as legally
absolute and inviolable.

27. Hybrids
 Search engines, aggregators, social networks, apps...they fall under
the e.commerce directive
 But they are “different” from “common” ISPs (?)
 Are they totally “neutral”?
 Do they “select” (and so have a sort of editorial control) on
contents?

28. 2012 Sabam-Netlog C-360/10 (“neutrality”)
 Question raised: if it is consistent with European law a system for
filtering most of the information stored on Netlog servers in order to
identify files containing works in respect of which SABAM claims to
hold rights, and to block the exchange of such files.
 The Court affirmed Netlog is a hosting service within the meaning of
article 14 of Directive 2000/31 as it stores information provided by
the users on its servers.
 So, a social network falls under the e.commerce directive

29. Some argument against neutrality
 EU opened an investigation on the way Google ranks and displays Internet-
search results and of its advertising contracts with other websites
 Google proposals: Google has offered clearer labeling of results for its own
products, such as YouTube, Google Shopping and Google+, so that users
can distinguish them from other search results. Google also has been
accused of copying, or "scraping" content from rival websites, and it also
has proposed to give rivals an "opt-out" to prevent this from happening.

30. Some Italian courts have attempted to find Internet intermediaries liable for the content
that they or their services transmit, store, or even index.
the courts say that due to technological evolution, the activities of Internet providers
can be no longer in line with those codified by EU legislation and therefore the
system of liability exemptions therein contained needs to be re-interpreted.
new genus of services, somewhere in between hosting and directly offering content.
This new genus is not completely passive in the transmission of third parties’ content,
and does not limit its activity to offer the storage of memory, but, on the contrary,
has a specific role in organizing the content uploaded by users (revenue form
advertisements that link to the infringing content, even if uploaded by users, the
host can remove, according its terms and conditions of use, flagged contents. The
system used to be informed of the abuses is a way to have some kind of control on
the contents; the “suggested videos system” is an “editorial” service).
Those are “active hosting providers”

31. Conclusions (?)
 Intermediaries are affecting the business model of “traditional players”
 They offer new business models and business opportunities, but the are
also competitive for advertising revenues
 The question about investment in original content is still open
 Problems in defining neutral intermediaries and the scope of application of
the e.commerce directive
 Need of a new regulation in between AVMSD and ECD?
 case-by-case analysis has to be made to determine the liability of a ISP or
ISP-like?