New EU Recommendation on Illegal Content Online Undermines Online Rights and Harms Europe’s Tech Economy

BY Heather Greenfield
March 1, 2018

Brussels — The European Commission has published a Recommendation on measures to effectively tackle illegal content online today. The Recommendation was presented despite the Commission’s commitment to continue its dialogue with relevant stakeholders until at least May 2018 and without reference to any major incidents justifying such a hurry.

While not legally binding, this Recommendation encourages Member States and puts pressure on hosting services providers to take detailed measures to tackle illegal content online. It can also be referred to in Court. Initially expected to tackle online terrorist content, the scope of this Recommendation has been expanded to cover all kinds of infringing content.

CCIA has long advocated for the introduction of well-thought out and harmonised guidelines for the takedown of infringing content, setting out clear steps and responsibilities for hosting services providers and complainants. Unfortunately, this Recommendation includes many provisions undermining the e-Commerce Directive, the legal foundation of the European digital sector, and European fundamental rights, such as freedom of expression online and the freedom to conduct a business. These provisions would also create fragmentation across the Digital Single Market and important barriers to entry for European startups and SMEs.

This Recommendation, for example, introduces a one hour turnaround time for the takedown of terrorist content. Such a tight time limit does not take due account of all actual constraints linked to content removal and will strongly incentivise hosting services providers to simply take down all reported content.

The Recommendation also encourages the broad adoption of proactive automated measures to remove infringing content across the whole of the Internet. If implemented, this may lead to widespread online censorship by forcing hosting services providers to suppress potentially legal content.

This Recommendation finally also encourages hosting services providers to prevent the re-upload of infringing content that has already been taken down (“notice and stay down”), creating a de facto general obligation to monitor, thereby infringing Article 15 of the e-Commerce Directive.

By constantly improving their notice and takedown mechanisms or participating in many initiatives such as the EU Internet Forum, the Memorandum of Understanding on the sale of counterfeit goods and the Code of Conduct of Hate Speech, hosting services providers have demonstrated their commitment to the fight against infringing content. It remains unclear why the Commission decided to issue a Recommendation that seriously strains the existing legal framework of the EU Internet economy and users’ rights online.

The following can be attributed to CCIA Senior Manager Maud Sacquet:

“This Recommendation undermines online rights as well as the legal foundation of the entire European Internet economy. We call on the Commission to continue its dialogue with stakeholders to develop workable and balanced measures to tackle illegal content online.”

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