Intermediary Liability

Committee work

The role of ISPs as “mere conduit[s]” established in the E-Commerce Directive is a milestone in ensuring a predictable legal environment for Internet Services Providers. Indeed, it ensures ISPs can empower European citizens and businesses to take advantage of the benefits of the online sphere. In recent years, EuroISPA has been successful in defending the European protection granted to intermediaries from attempts to weaken it. Important rulings have been adopted by the European Court of Justice that have reinforced the European body of laws that governs the Internet sector. In light of the recent publication of the Digital Single Market Strategy, EuroISPA will continue to promote innovation-friendly liability protections as the key infrastructural element of the digital single market. The EuroISPA Intermediary Liability committee brings together Service Providers from along the Internet value chain who share the interest of maintaining the liability protections that have allowed Europe’s digital economy to thrive.

Key dossiers

E-Commerce Directive

Intellectual Property Rights Enforcement Directive

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Latest developments 

June/July 2016: State-of-play in EU-level reflections on platforms and illegal content

The European Commission published its Communication on Platform Regulation in May (details below). In the last week there have been two follow-up developments that may be of interest to committee members.

Good Samaritan liability guidelines

  • The European Commission has announced that its promised intermediary liability guidelines will be published in Q2 2017.
  • These guidelines will seek to clarify the instances where online platforms can proactively seek out illegal content without jeopardising their liability Safe Harbours under the E-Commerce Directive.

European Parliament own-initiative report on platforms

  • The European Parliament has announced that it will undertake an ‘Own-Initiative report’ in reaction to the Commission’s platform communication.
  • This Own-Initiative Report is non-legislative and will constitute MEPs’ policy ‘wish-list’ for future legislative activity around platform regulation.
  • The report drafting will be led by the European Parliament’s Internal Market (IMCO) committee, with French centre-right MEP Philippe Juvin as rapporteur.
  • A timeline for the report has not yet been set, but it is highly unlikely that any meaningful activity will be undertaken before MEPs return from their summer break.
  • This report is likely to place a strong focus on illegal content and intermediary liability.
  • Given the loose (and sometimes unsophisticated) language employed by the Parliament thus far in the EU-level debate on platforms, the report’s prescriptive language around illegal content is likely to touch upon Internet intermediaries in general.

June/July 2016: EuroISPA hosts European Parliament roundtable discussion on tackling illegal contend online

On the afternoon of 21 June, EuroISPA hosted a roundtable discussion in the European Parliament, alongside Czech Liberal MEP Pavel Telicka.

The discussion focused on the fight against illegal content online, and sought to educate members of the European Parliament and European Commission on ISPs’ unique insights into tackling illegal content.

The EuroISPA vision of a Notice-and-Takedown framework characterised by transparency, clarity, and judicial oversight was delivered by Alex de Joode of Nederland ICT.

The roundtable is one of many EuroISPA actions in 2016 focused on intermediary liability, Notice-and-Takedown, and tackling illegal content online. Several additional initiatives are planned for after the summer break, including a joint-event on INHOPE highlighting the power of industry self-regulation in protection children online.

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Previous updates

May 2016: European Commission publishes Communication on platform regulation

General assessment:

  • The Commission has given a strong endorsement of industry-led actions to fight illegal content online and will continue to pursue co- and self-regulatory initiatives (particularly with respect to CSAM, terrorism, hate speech).

Note in particular:

  • The Commission will not reopen the intermediary liability framework of the E-Commerce Directive.
  • Platforms will be encouraged to take more effective voluntary action to curtail exposure to illegal content, including CSAM.
  • The Commission will explore the need for guidance on the liability of online platforms when putting in place voluntary measures to fight illegal content online.
  • The Commission will review the need for formal Notice & Action procedures, depending on the success of upcoming DSM initiatives concerning illegal content (e.g. Copyright reform, IPRED revision)

The Communication can be read here. Pages 07-09 concern illegal content and platform responsibility.

EuroISPA circulated a press statement following the publication of the Commission's communication, titled Platform communication opens door to renewed dialogue on improving the fight against illegal content online. 

Next steps:

  • Secretariat is currently finalising the organisation of a roundtable discussion in the European Parliament on June 21 to discuss Notice-and-Takedown and fighting illegal content from the ISP perspective.

May 2016: European Commission publishes policy roadmap to modernise IPR enforcement 

The European Commission has published an inception impact assessment on its initiative to modernise the enforcement of intellectual property rights.

The document identifies the shortcomings and gaps in the existing IPR Enforcement Directive, and seeks to kickstart a reflection on how does issues can be addressed.

Identified shortcomings:

  • Right of information (article 8): Often, either justified requests by rightsholders to information concerning infringements are systematically denied, or granted without proper assessment.
  • Cross-border executions of injunctions (article 11): Rightsholders find it very difficult to execute injunctions in other Member States.
  • Damages (article 13): Rightsholders complain that amount of damages awarded by the competent judicial authorities are too low.
  • Legal costs (article 14): All stakeholders complain that reimbursement of legal costs are too low.

Gaps in the law:

  • The role of intermediaries in enforcement: IPRED does not establish an explicit liability of intermediaries for IPR infringements. This is worth exploring, as intermediaries could play a key role in enforcement.
  • Specialised courts:There is perhaps a need for specialised national courts to deal with IPR infringements and enforcement.

Possible policy instruments:

  • Improving implementation and enforcement of the Directive’s provisions.
  • Guidance on the meaning and application of the Directive’s provisions.
  • Promotion and facilitation of self-regulatory initiatives to protect IPRs (e.g. MoU on counterfeiting).
  • Reopen the Directive to address the above-mentioned shortcomings and gaps.

The full inception impact assessment can be read here.

Unfortunately, the Commission’s assessment relies heavily on data produced  by the European Observatory on Infringements of Intellectual Property Rights. Studies produced by the Observatory have consistently been identified as substandard by EuroISPA and civil society stakeholders.

Next steps:

  • The Commission has also published an evaluation framework, setting out the measures it will undertake to assess the effectiveness of the existing IPRED.
  • The Commission will hold a workshop on June 21 to outline the state-of-play in the IPRED revision reflections. Secretariat will attend and report to members.

March/April 2016: EuroISPA submits response to IPR Enforcement Directive public consultation

In early April, EuroISPA submitted its response to the European Commission's public consultation on the IPR Enforcement Directive. The purpose of the public consultation was to gather stakeholder feedback on the effectiveness of the Directive ahead of a scheduled legislative revision in summer 2016.

EuroISPA's participation in the consultation centred on the elements pertaining to intermediaries, in particular

  • The functioning of the existing IPR legal framework
  • Injunctions of intermediaries in case of IPR infringements
  • The role of intermediaries in IPR enforcement and the prevention of IPR infringements

EuroISPA members provided feedback to the European Commission on the functioning of the IPR enforcement framework and pointed to specific improvements that could be implemented to the benefit of the IPR holder.

Next steps

The European Commission will propose a legislative reform of aspects of the IPR Enforcement Directive in summer 2016.

February 2016: State-of-play on the IPRED Consultation

EuroISPA participates in the Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPRED).

Following the Commission’s launch of the IPRED Consultation on 9 December 2015, EuroISPA decided to contribute to the intermediary questionnaire, answering questions related to – inter alia - the functioning of the existing IPR legal framework, injunctions of intermediaries in case of IPR infringements, and the role of intermediaries in IPR enforcement and the prevention of IPR infringements.

Members have provided constructive feedback as to the functioning of the enforcement of the IPR framework and pointed to specific improvements that could be implemented to the benefit of the IPR holder.

Members further stressed the need to refrain from introducing in the IPR framework a provision that would allow national courts to order intermediaries to take measures aimed at preventing infringements committed against IPR. Members pointed out that such a provision would force ISPs to decide on infringements, thereby intruding on the authority and essential role of national courts to interpret and decide which activities are infringements.

Next Steps

The deadline for submitting a response to the consultation is 15 April 2016.

January 2016: European Commission publishes preliminary findings of recent Online Platform public consultation 

Following EuroISPA’s participation in the online platform consultation, the European Commission published preliminary results of the consultation on 26 January 2016. Over 1000 stakeholders - the overwhelming majority acting in their capacity as citizens - contributed to the consultation.

Regarding online platforms, the majority of the respondents said they had encountered or were aware of problems faced by consumers, and that those problems could best be resolved through a combination of regulatory, self-regulatory and market dynamic measures.

On online intermediaries, views are divided on the appropriateness of the liability regime under the E-Commerce Directive. In addition, the majority of respondents consider that different categories of illegal content require different policy approaches as regards notice-and-action procedures, particularly for infringements of IPRs, child sexual abuse material, and hate speech.

The results also show that the majority of respondents wish for more transparency concerning the content restriction policies and practices of online intermediaries.

Finally, on data and cloud computing, the results support the need to make a clear regulatory distinction between personal and non-personal data.

Next Steps

The Commission is carrying out an in-depth analysis of the replies to the public consultation and a full report will be published in the spring of 2016. The Commission has also launched three external studies supporting part of the analysis of the replies.

The responses to the section on ‘data and cloud in digital ecosystems’ will notably be taken into consideration for the Commission's 2016 initiative to tackle restrictions to the free movement of data within the EU and for the European Cloud initiative.

 

December 2015: EuroISPA submits its response to the Online Platform Consultation

On 18 December 2015 EuroISPA successfully submitted its response to the Commission’s Online Platform Consultation. Through this consultation, EuroISPA called the Commission to keep the status quo on the liability regime of the E-commerce Directive as it is the best option to allow businesses and consumers to benefit from further growth and innovation.  Furthermore, EuroISPA expressed its scepticism with the new definition of “online platforms” provided by the Commission as the term “information society services” defined in Directive 98/34 is still fit for purpose and brings the legal certainty needed in the digital economy ecosystem.

Next Steps

The Commission will issue the first results of the Online Platform consultation by mid-January 2016. A full assessment report will be published in February, which will be used to feed a possible proposal on Notice and Action.

December 2015: Commission publishes public consultation on IPR Enforcement Directive

On 9 December the European Commission opened a public consultation to gather stakeholder feedback on the IPR Enforcement Directive (IPRED).

In the Digital Single Market strategy the Commission committed to reopening the IPRED, with a particular focus on commercial-scale infringements (the 'follow the money' approach) and its cross-border applicability.

The public consultation will run until 1 April 2016.

Dedicated discussion time will be allocated at the EuroISPA General Meeting in January to analyse the consultation questions and define a strategy for EuroISPA’s response.

The consultation can be accessed here.

 

December 2015: European Parliament adopts a non-binding resolution on tackling radicalization

The European Parliament passed a non-binding resolution on the ‘prevention of radicalisation and recruitment of European citizens by terrorist organisations’ on Wednesday 2 December (here), in which it set out proposals for a strategy to tackle extremism that will be applied - inter alia – online. The resolution was drafted by Rachida Dati (E PP, FR) and the adopted text can be found here.

The resolution ‘recalls’ that internet and social media companies and service providers have a legal responsibility to cooperate with Member State authorities by deleting any illegal content that spreads violent extremism, with full adherence to the rule of law and fundamental rights. The resolution also notes that Member States should consider legal action, including criminal prosecution, against internet and social media companies and services providers that refuse to comply with an administrative or judicial request to delete illegal content or content praising terrorism.  It further considers that the internet industry and services providers must make it possible to ‘promote radicalisation prevention messages aimed at countering messages that praise terrorism.’

EuroISPA has issued a press release on the website in response to the resolution passed by the European Parliament, which can be found here. In the press release, EuroISPA expresses its strong support for tackling radicalisation content online jointly with law enforcement agencies, but requests for legal clarity as to what constitutes illegal content that contains messages of radicalisation. Without such clarity, internet service providers (ISPs) run the risk of failing to properly identify illegal content and engaging in excessive censorship, thereby contravening the fundamental rights of their users. EuroISPA therefore urges action to ensure that online illegal content is properly policed and underpinned by court authority to ensure fundamental freedoms are adequately protected.

Next Steps

On 3 December, the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulous, together with the Commissioners for Justice, Consumer and Gender Equality, Věra Jourová, launched the EU Internet Forum (here). This forum consists of EU Interior Ministers, high-level representatives of major internet companies, Europol, the EU Counter Terrorism Co-ordinator and the European Parliament. Discussions on the forum will focus on reaching a joint, voluntary approach based on a public-private partnership to detect and address harmful material online.

On 7 December, the European Commission released a proposal for a Directive on combatting terrorism, which will replace Council Framework Decision 2002/475/JHA, which is the current European framework for combatting terrorism. The co-legislators in the European Parliament and the Council of the EU will likely begin scrutinizing the proposal in early 2016.

November 2015: European Parliament LIBE committee adopts report on the Prevention of Radicalisation

Last 19 October the LIBE Committee approved MEP Rachida Dati’s report on the Prevention of Radicalisation. It will be voted in Plenary in November. Even though it is not legally binding for the rest of the institutions, it will express the voice of the European Parliament in the ongoing debate of terrorism and intermediary liability. Regarding online platforms the report states that:

  • Member states should consider taking legal action against internet companies that refuse to comply with a request to delete illegal content.
  • If a company refuses to cooperate and thus allows illegal content to circulate, this should be considered as an act of complicity equivalent to criminal intent.
  • Further measures should be introduced to make it easy for all internet users to flag illegal content circulating on the internet and social media networks.
  • All member states should set up special units tasked with flagging such illegal content.
  • The internet industry and service providers should cooperate with member states’ authorities and civil society to promote powerful and attractive narratives to counter hate speech and radicalisation online.

EuroISPA Secretariat with the support of the Intermediary Liability Committee drafted a letter to express our concerns with the text of the report. The letter focuses in the following aspects:

-          Need for a clear terminology: Paragraph 9 is using a confusing terminology and refers to “Internet companies”, “Internet Service Providers” and “Internet platforms”.

-          Need for a reference to the E-Commerce Directive, which is useful to frame such political statement in a law that has clear safeguards and limits.

Next Steps

The letter will be circulated to influential MEPs on the LIBE committee on Monday 9 November. The vote of the report in the plenary is scheduled for the week of 23 November.

November 2015: Online Platform consultation first draft response circulated

EuroISPA will respond to the online platform consultation that the Commission launched in late September. After a discussion with the Intermediary Liability committee Chair and a call with its members, the Secretariat gathered the different input in its first draft response.

Next Steps

The Secretariat is seeking members’ comments and feedback for Friday 20 November. After that, the Secretariat will draft a consolidated response that will be circulated to members on the 27th of November. The goal is to approve the final version in the next General Meeting, which will take place in Brussels on 30 November and 1 December.

September/October 2015: EuroISPA developing response to Commission's Online Platform consultation

The European Commission has launched a public consultation on the role of Online Platforms. This consultation covers:

  • The role of online intermediaries, including ways to tackle illegal content on the Internet.
  • The social and economic role of online platforms
  • Transparency of platforms –such as transparency in search results, terms of use, ratings and reviews;
  • The use of information by platforms.

The results of this consultation will feed the forthcoming Internal Market Strategy and the upcoming proposal on EU copyright.

Next Steps

The Secretariat has recently circulated a paper with the possible questions that EuroISPA could answer and will organise regular calls to build a consensus position ahead of the next General Meeting.

The Consultation will be open until the 11th of December.

August 2015: JURI committee publishes draft DSM opinion

During the summer recess, the European Parliament’s Legal Affairs committee published its opinion on the Parliament’s Digital Single Market non-binding report. The opinion contained the following assertions of interest:

  • Calls for targeted, evidence-based reforms to enhance cross-border access to legally available online content but stresses the importance of not mandating pan-European licences; calls instead for reforms to enable the enhanced portability of legally acquired content to be prioritised;
  • Believes that internet service providers should bear greater responsibility for illegal content made available on the internet and should, along with other actors in the supply chain such as payment providers, play a significant role in tackling copyright abuses;
  • Considers that copyright enforcement is important and therefore calls for a modernized approach to the enforcement of intellectual property rights online, particularly with regard to commercial-scale infringement

The full opinion can be read here.

European Court of Human Rights issues judgement in case of Delfi AS v Estonia

The Grand Chamber of the European Court of Human Rights (ECHR) has issued the long-awaited judgment in the case of Delfi AS v. Estonia. The ECHR found no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The court stated that holding Delfi liable for comments posted by third parties had not been in breach of its freedom to impart information. Consequently the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression.

The Grand Chamber found that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because: the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis; the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for Delfi, one of the largest Internet portals in Estonia.

In short, websites can be declared liable for matters people post in comments. It is likely that the outcome of this case will feed into the upcoming European Commission discussions on whether online intermediaries ought to execute a special duty of case with regard to content online.

Detailed analysis of the Delfi v Estonia ruling can be found here (links to external site). 

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