On 11 January 2012 the Commission presented its Communication on e-commerce. The Communication sets out an action plan to double online sales and the share of the Internet economy in EU GDP by 2015. To this end, the Communication aims to address the still fragmented nature of Europe’s digital market and highlights five policy priorities:

  • Develop legal and cross-border offers of online products and services
  • Improve operator information and consumer protection
  • Reliable and efficient payment and delivery systems
  • Combat abuse and resolving disputes more effectively
  • Deploy high-speed networks and advanced technological solutions

The action plan is very comprehensive in that it tries to connect all the Commission’s policy initiatives that impact on the development of Europe’s digital economy. Such a coordinated approach makes sense and is surely needed if the Commission wants to achieve its proclaimed goals. In comparison to other regions in the world, Europe’s online economy lags behind and a truly integrated, internal digital market would spur innovation and economic growth. This, however, requires coordination between the various policy proposals put forward by the Commission, including its IPR strategy, new rules on data protection, a high-speed Internet, and many more.

As regards the key piece of European legislation, the E-commerce Directive, the Commission recognizes the crucial role played by this legislative piece in the development of online services throughout the last decade. By following the opinion of the vast majority of stakeholders that responded to a public consultation in 2010, the Commission sees no need to revise the Directive at this stage. This is of particular importance for the Directive’s provisions on liability exemptions for online service providers that only serve as intermediaries. These provisions are the major pillar supporting the digital economy and what is now needed is not their amendment, but their clarification.

Intermediary Internet service providers often face a fragmented legal landscape across the EU in which the applicable rules for benefitting from these provisions differ across the Member States. There is legal uncertainty as to rules and practices that are expected or required of them when they become aware of illegal content on their websites or online platforms. To improve this situation, the Commission will bring forward an initiative on so-called ‘notice-and-action’ procedures. This initiative aims to clarify rules on removing (takedown) or blocking of access to illegal content by an online company after it has received a notice to do so. With the purpose to bring the divergent national approaches in line, this initiative will address questions on how an intermediary should be notified or in which way he will have an opportunity to explain that the alleged illegal content is actually rightful.

Needless to say, the questions surrounding notice-and-action procedures are very sensitive given the various interests at stake and potentially undesired consequences. It is important to keep in mind that there are not only commercial interests at stake but also fundamental rights such as freedom of expression and information. Some online intermediaries developed into important channels for people effectively making use of their fundamental rights and it is important to have appropriate thresholds and safeguards in place.

Furthermore, it will also be important to achieve consistency between this initiative and the outcome of the Commission’s review of the IPR Enforcement Directive, also scheduled for this year. The latter offers the possibility for rightsholders to apply for an injunction against intermediaries whose services are being used by a third party to infringe IPRs. It is crucial that any new rules on notice-and-action procedures provide for more legal certainty and less bureaucracy while continuing to guarantee the effective exercise of fundamental freedoms.

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