Last week the European Commission initiated a public consultation titled: “A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries”. As the name suggests, the consultation addresses rules and procedures for notifying and acting (N&A) on illegal content hosted by online intermediaries.

This consultation is a result of a more general public consultation held in 2010 on the future of e-commerce and the implementation of the E-commerce Directive. The consultation revealed that the majority of respondents did not consider a revision of the Directive as necessary at this stage. However, many voiced the need to clarify certain articles in the Directive and the functioning of N&A procedures as there remain certain problems:

– There is legal uncertainly across Europe, as key terms contained in Article 14 of the E-commerce Directive are interpreted differently by national courts;

– The time of illegal content staying online; and

– Instances where legal content is mistakenly taken down, raising fundamental rights issues.

It is noteworthy that submissions to the consultation have to be made online by filling out a questionnaire which asks detailed questions on the individual practices and experiences with N&A procedures of online hosting platforms.

As regards notifying, the Commission asks whether all hosting providers should have a procedure in place which allows them to be easily notified of illegal content that they may be hosting. Following that detailed questions are asked on how a notice should look like, what information it should contain, and how it should be submitted. Importantly, the Commission recognized the problem of unjustified and sometimes even abusive notices and specifically asks how to deal with this problem.

The second key component of the consultation concerns possible actions against illegal content by hosting service providers. Issues in this section of the consultation concern procedural matters like possible obligations to provide feedback to notice providers about the status of their notice as well as the central question of what should be done with illegal content. As regards the latter, the Commission asks whether illegal content should be removed, i.e. deleting it, or whether it should first disable access to it, i.e. blocking it. Other options could also be considered.

Further questions concern the exact definition of a service provider’s obligation to act ‘expeditiously’ once the illegal nature of the content is confirmed. Some argue for a pre-defined timeframe in this context whereas it is important to keep in mind that the specific circumstances of cases can vary considerably with a corresponding varying degree of difficulty in actually establishing the legality or illegality of content. Importantly, the Commission also asks how to prevent unjustified action against legal content. After the repeated attempts of some constituencies to force intermediaries to implement de facto filtering regimes like in the SABAM and Netlog cases, this point rightly receives attention in the consultation, especially given that it raises fundamental rights issues.

While a discussion on these issues is certainly worthwhile, it is important to highlight that the Commission has actually not decided whether it will take any action at all. Accordingly, the policy response could range from self-regulation to binding detailed rules with all the dangers inherent in a one-size-fits all approach without sufficient regard for industry practices that have already proved to be effective. That is why a response is highly recommended. The deadline for submissions is September 5, 2012.

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