After closing a public consultation in September 2012, the Commission’s services responsible for the internal market have just sent the first drafts for a Directive on notice-and-action (N&A) procedures and a non-binding Communication on best practises into inter-service consultation. During the inter-service consultation other Commission services have the opportunity to comment on the draft proposals before they will be formally adopted by the college of Commissioners. The final adoption by the college is scheduled for the 10 July.

Given the importance of N&A procedures for online intermediaries the question arises what to expect from the initiative? Further, how will these procedures interact with the broader intermediary liability exemptions enshrined in the E-Commerce Directive? Given that intermediary liability protections are as important to online platforms as intellectual property rights are to the creative industries, these questions are of fundamental importance.

For starters, the Commission’s initiative is to be welcomed. At the time of the adoption of the E-Commerce Directive no precise N&A mechanism was foreseen even though the Directive requires intermediaries to act expeditiously once they become aware of illegal content on their online platforms. Some Member States have enacted specific N&A legislation whereas others have not. In addition, some important questions on the takedown of allegedly illegal content were left to courts, including the CJEU, touching on the delicate balance between intermediaries’ protections and obligations struck in the E-Commerce Directive.

The initiative’s laudable aim is to have a more harmonized approach on N&A across the EU and, more importantly, to have more legal certainty for all participants. In contrast to the US DMCA, the proposed Directive is a ‘horizontal’ measure, i.e. applicable to all sorts of illegal content and not only to IP infringements. The four main pillars of the initiative include a right to notify, a minimum quality standard for notices, provisions on the transparency of N&A procedures as well as the right to issue a counter-notice contesting the intermediaries decision to disable access to a content provider’s content.

There is another notable difference to the standard practise under DMCA: the intermediary would have discretion in deciding whether to take down content or not. Similarly, it would also have discretion in deciding whether or not to restore the content after receiving a counter-notice. In the context of a risk of over-takedown, that is potentially a reasonable approach because intermediaries would not have to follow any sort of bogus notices and would have a certain level of influence over what stays on their platforms which is not only important from a business perspective but also in terms of ensuring fundamental rights are observed like freedom of speech online.

However, when this sort of discretion is given to the intermediary and he is put in the position of arbiter, there must be a guarantee that he will be protected from any sort of liability claims against him on the basis of the decision he came to. Otherwise he is potentially subject to the liability claims of one party and there will always be one party that is unhappy in the context of notice and counter-notice procedures. That is one key element that is currently lacking in the proposal and that we hope the Commission will recognize as this initiative moves towards the legislative process.

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