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 onlineproducts 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.
