The EU Should Strengthen, Not Weaken, Intermediary Liability Protections

BY Christian Borggreen
April 23, 2015

The European Commission (EC) will on May 6 present a Digital Single Market Strategy, i.e. Europe’s next game plan for digital policy.

Recent terrorist attacks in Europe have led some governments to push for Internet platforms to actively monitor users’ activities.  Certain industries have used this context to argue that Internet companies  moreover should be forced to proactively monitor their platforms and take down allegedly illegal content such as pirated music files.

EU legislation has in the past 15 years exempted Internet platforms, under certain conditions, from liability for user and third parties’ data passively running on their networks or hosted on their platforms – provided that illegal content is taken down upon being notified.

Should the EC decide to weaken intermediary liability protections then this could open a Pandora’s box to all sorts of unintended consequences, namely:

  • Online intermediaries would be forced to actively monitor (mass surveillance anyone?) users online which would conflict with users’ right to privacy — a practice which Europe’s highest courts have already judged to be unlawful.
  • Intermediaries would have to unilaterally judge what third party content to remove from their networks and hosting platforms.
  • This would encourage over take-down, including of legal online content, which would conflict with users’ right to information and free speech.
  • This would open the door to an avalanche of costly lawsuits (along with expensive monitoring systems) which especially could kill small start-ups and SMEs which we depend on for innovation and jobs.
  • Finally, it would set the wrong signal globally in terms of online freedoms and barriers digital trade.

The EU should rather:

  • Encourage harmonisation across the EU and transparency on notice and takedown procedures based on the existing e-Commerce Directive.  A best-practices analysis of existing implementation of the Directive and guidelines would be useful.
  • Recognize the effectiveness of voluntary measures implemented by intermediaries to keep their platforms free from illegal information.
  • Introduce a “Good Samaritan Clause” to ensure that intermediaries do not lose their liability protections when they voluntarily exceed their legal obligations in an effort to root out unlawful content.
  • Introduce counter notice procedures for users to better challenge wrongful take down requests.

Before announcing any actions, the EC may consider to; 1) provide evidence of any real problems; 2) clearly define the problems it is trying to solve and: 3) consult with stakeholders.

A multitude of diverse Internet platforms have blossomed in Europe thanks to the balanced legislation in place since year 2000.  These intermediary platforms play an important role in advancing the objective of a true European single market by boosting the cross-border delivery of goods and services, including by enabling cross-border sales by small enterprises.

Rather than weakening intermediary liability protections, the EU should strengthen safeguard to enhance online rights and boost innovation and digital growth.

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