This is a guest post by Volker Rieck. The article has been translated from German and originally appeared in the Frankfurter Allgemeine Zeitung. Link here.  We took liberties by changing the title of article for the English version.  Other minor phrasing has also been americanized. – David Lowery

After the manipulation is before the manipulation

On 12 September 2018, the EU Parliament voted on the proposed Directive on Copyright in the Digital Single Market. The entire summer of 2018 was characterized by a gigantic lobbying assault as the directive’s opponents resorted to “asymmetrical” lobbying means and bombarded EU parliamentarians with avalanches of emails and floods of tweets in a manner resembling the handiwork of a grassroots movement. (ed. note:“resembling” is the key word here). In the end EU parliamentarians did not buy the notion the opposition was purely organic grassroots movement and passed the directive. In fact, the spamming of the parliament may have backfired.

Nevertheless, immediately after losing the September vote, the opponents of the directive marshaled their forces to sketch out how they could influence the trilogue process of negotiations on the legislation between the Council of the European Union (the member states), the EU Commission and the EU Parliament.

“It is coming from Google”?

On 21 September 2018, the fifth “Das ist Netzpolitik!” [“This is net politics!”] conference took place in Berlin. One of the speakers was Julia Reda, the sole representative of the Pirate Party in the EU parliament. At the conference – addressing her supporters and requesting that they write to EU parliamentarians – she said:

“They need to get a sense that this is relevant for their constituencies. Then they won’t believe it is coming from Google.”

Now, it is possible to interpret this in very different ways. None of the information we have suggests that Google bombarded parliamentarians with twitter storms and with tens of thousands of emails. The initiative #saveyourinternet was responsible for most of the lobbying. (Further information on the curious background of this hashtag campaign is given in this article.)  What is relevant here is that Julia Reda backed this initiative in a tweet sent out shortly before the conference began.

Screenshot: Tweet sent by Julia Reda on 21 September, 2018

So on the one hand, we see Julia Reda requesting that her supporters write to EU parliamentarians personally (to dispel the impression that “it is coming from Google”) and on the other hand, we see her speaking out in favor of the initiative #saveyourinternet that had, over the summer, left parliamentarians whose inboxes and twitter accounts had been flooded with messages with the impression “that this is from Google.”

So just how are Google and the #saveyourinternet campaign connected? Does Julia Reda have more information or information that differs from what is in the public sphere?

The EU Transparency Register: As opaque as milk

The EU Transparency Register contains an entry on Google which lists 24 associations Google belongs to as a member. These include CCIA, one of the main sources of funding for the Copyright for Creativity (C4C) ad-hoc coalition behind the #saveyourinternet campaign. (We have reported on them previously here).

But the transparency offered by the register is quite restricted. Organizations Google Inc. belongs to are listed, but additional subsidiaries like Google Germany GmbH are not.
As Google Germany has no entry in the EU register, the register does not contain information on organizations and associations that are supported at national level by Google subsidiaries and may thus be far more dependent on Google than if only a single Google membership existed.

Organizations falling into this category that are C4C supporters include:
CDT – Center for Democracy & Technology
IGEL – Initiative gegen ein Leistungsschutzrecht
OFE – Open Forum Europe

The organizers of #saveyourinternet – the lobbying company N-square, which organized the campaign on behalf of C4C, and N-square’s parent company KDC – are not represented transparently in the EU register, just as they were not represented transparently on their campaign website. N-square has an entry in the transparency register that specifies financing of less than EUR 9,999 with Google in 2016 and mentions that N-square is part of the KDC group. The KDC Group, which also has Google and CDT as customers is not mentioned further in the register. Ultimately, it seems highly likely that Google is far more important for KDC/N-square than the rather low financing amount the register reflects.

Screenshot: KDC Website with customers like Google and CDT

As only partial listings are available for certain relevant entities, the EU transparency register can only hint at the connections between Google and the #saveyourinternet campaign. Perhaps looking beyond the borders of the EU will shed more light on affairs.

Oh, how beautiful is Canada

As mentioned in this articlefrom 27 July 2018 and this articlefrom 3 August 2018, the Canadian enterprise OpenMedia was one of the major initiators and drivers of the #saveyourinternet campaign.

OpenMedia is now also preparing to go on the warpath once more; the “battle” over Article 13 of the directive is clearly not yet over. In the OpenMedia newsletter released shortly after the September vote, the company announced its intention to increase pressure on individual EU member states.

Illustration: Extract from the OpenMedia newsletter from 14 September, 2018

The anti-campaign is also referenced on OpenMedia’s website.

Illustration: Screenshot of the OpenMedia website on 13 October, 2018. The link shown is, however, broken.

Now, to be crystal clear about this, OpenMedia is a Canadian company. So here we have a Canadian company announcing that it will exert pressure on EU member states to get the EU to change its laws in a way that suits a Canadian company. The situation is absurd, and whether the EU and its parliamentarians will appreciate such external meddling in their policymaking seems questionable.

When “open” means anything but

Let us take a closer look at OpenMedia.

OpenMedia was founded in 2014. The former Google policy manager Jacob Glick sits on its board.

Illustration: Screenshot from the OpenMedia Website (OpenMedia’s Board).

Transparency is a core value of the enterprise.

Illustration: Screenshot from the OpenMedia Website (Transparency).
“We are constantly seeking ways to be more open…”

Nevertheless, anyone currently seeking transparent information on Open Media’s funding is in for a difficult time.
None of the financial statements for the years 2014–2016 can now be called up on the OpenMedia website.

Illustration: Error message on the OpenMedia Webseite on attempting to call up a financial statement

So much for OpenMedia’s “open approach” and emphasis on transparency.

Sponsorship magic

On its website, OpenMedia gives at least a glimpse into where some of its revenue comes from. The enterprise has sponsors. The platinum sponsorship category encompasses those sponsors contributing more than 20 000 Canadian dollars. How much more is not clear, and whether these payments are one-off or repeated is not spelled out. The annual reports could clarify this – if only they were available.

During the summer of 2018, something rather odd happened to this list of sponsors.

In July 2018, 8 enterprises or individuals were still listed as platinum sponsors. These included the Mozilla Foundation and The Office of the Privacy Commissioner of Canada, a body comparable with European data protection authorities.

Illustration: The list of platinum sponsors from July 2018

By October 2018, the number of platinum sponsors had (magically?) shrunk.

Illustration: The list of platinum sponsors in October 2018

Now only five entities are listed as platinum sponsors. In the absence of greater transparency, we can only speculate as to why: did sponsorship agreements elapse or was there another reason? The Canadian Privacy Commissioner and the Mozilla Foundation have now been removed from the list. Was being listed as sponsors unpleasant for them? It is, after all, somewhat bizarre to think of Canadian taxpayers’ money being used to influence EU policy and the work of EU parliamentarians, not least by flooding the latter with spam emails.

 

OpenMedia and New/Mode – Which came first, the chicken or the egg?

Tools from the Canadian enterprise New/Mode were – provably– used on various pages in the #saveyourinternet campaign during the summer of 2018. The use of such tools ensured that the offices of EU parliamentarians were kept busy deleting identical e-mails with the same content and dealing with Twitter accounts stuffed with messages for weeks on end.

Up to the summer of 2018, the OpenMedia website still stated that New/Mode Inc. was a subsidiary of Open Media. That information has now been removed from the website and now, in October 2018, the relationship between the two companies is now suddenly described entirely differently, with OpenMedia now appearing to be a subsidiary of New/Mode!?

Illustration:  Screenshot from New/Mode website – “About Us” section.

This change seems to have been made in a rather slipshod manner, however, with New/Mode still being described as an offshoot of Open Media elsewhere.

Illustration: Screenshot from New/Mode website. The organization is described as an “offshoot” of OpenMedia.

The OpenMedia annual report clarifies the situation somewhat. Fortunate are those who managed to download it before it disappeared from the OpenMedia website! It is clear from the 2016 financial statement that OpenMedia lent 50 000 Canadian dollars to New/Mode in 2015. This loan was to be repaid on 3 September, 2016. The repayment date was subsequently rescheduled to 30 June, 2018. But ultimately Open Media received shares in New/Mode in place of the repayment in 2015.

Illustration: Extract from the audited annual report of OpenMedia 2016, which is now no longer available on the OpenMedia website

Why is the ownership of the company not communicated clearly and plainly? What are the presumed advantages of such contradictory and opaque communication?

Conclusion

Julia Reda’s fears that suspicions that Google is behind the campaign could arise certainly do not seem entirely unfounded. Google’s membership in one of the main funding sources for the campaign’s operator, the only partially transparent relationship between Google, this lobbying agency and its parent, and finally the personal and financial ties between Google and one of the Canadian lobby groups all combine to create this impression. The picture is further rounded out by the opaque nature of the partnerships linking local Google companies to initiatives that then pool their resources in Europe in ad-hoc coalitions like C4C.

While the new EU Copyright Directive has surmounted a first hurdle with the adoption of a text in the European parliament, the legislative procedure is still wide open. Numerous groups are now attempting to influence the trilogue negotiations by lobbying individual countries on the European Council. We will soon see whether national parliamentarians will now also be subjected to email avalanches and twitter storms by opponents of the directive.Their EU colleagues can certainly tell them much about how such lobbying campaigns unfold.

Perhaps the most shocking aspect of this entire episode has, however, been the brazenness with which interest groups outside the EU and non-EU enterpriseswith opaque ownership and funding structures have mounted an assault on the legislative bodies of the EU. This is asymmetrical lobbying of a very particular kind. One can only hope that the EU analyzes the events of this summer precisely and ensures that such attempts to exert influence and manipulate voting are not repeated in the run-up to the final vote on the new directive in the European parliament. The EU is already keenly aware of this problem, and measures to avoid the manipulation of voting have already been determined.