Brussels, 1st March 2018: Upon the adoption of the European Commission’s Recommendation on measures to effectively tackle illegal content online, EuroISPA has reiterated that the rule of law must not be sacrificed in the fight against illegal content online. Today’s Recommendation demands that Internet intermediaries are bound to suppress content at the request of state investigators or vigilante actors, without any independent assessment of legality. This places Internet businesses at risk of violating their obligations to respect fundamental rights in the online sphere.
The Recommendation proposes the use of automated filters to assess the legality of content, which will lead to over-blocking and censorship of lawful content. Proactive measures, especially in combination with such automated filtering methods, clearly run counter to recent jurisprudence of both the Court of Justice of the European Union as well as Member State court rulings.
Burdening Internet intermediaries with such immense responsibilities is not only troubling due to the lack of court oversight, it also serves to further reinforce the worrying trend of the privatisation of law enforcement online. This deeply disquieting tendency is further sharpened by the Recommendation’s encouragement of dealing with disputes with an out-of-court settlement mechanism, and by the extremely limited time frame of just one hour, within which Internet intermediaries are expected to remove content upon referral. EuroISPA is especially alarmed as such extreme time constraints clearly reflect that European law-makers fail to understand that such obligations would be almost impossible to put in place for the vast number of small and medium size businesses all over Europe.
EuroISPA is furthermore troubled by the recommendation that Internet intermediaries should simply comply with demands to remove content from private vigilante organisations, which the European Commission designates as "trusted flaggers". The proliferation of such entities, with the suggestion to extend these competences further to users and copyright holders, shows the Commission’s worrisome acceptance of the absence of court oversight and supports a system afflicted with a clear lack of impartiality: the entity making the complaint would often be the same which assesses the validity of the complaint.
Such an approach would also have severe detrimental effects on the current system of hotlines, whose valuable work on tackling Child Sexual Abuse Material online would be undermined. EuroISPA thus points out that, without the need of a court order, the increased power of referrals and take down or access restriction orders by competent authorities, will make it impossible to uphold due process and the rule of law online.
EuroISPA, and its over 2,500 member companies from all areas of the European internet ecosystem, have long been and continue to be dedicated in leading the fight against illegal content online, notably through its Members responsible for national hotlines, as well as supporting anti-malware and anti-spam initiatives across Europe. We reiterate our call for a policy framework to tackle illegal content online only in the context of due process and strong judicial oversight. Fundamental freedoms of European Internet users must be upheld, which can only be ensured through a system underpinned by court authority.