Europaudvalget 2011-12
EUU Alm.del Bilag 588
Offentligt
A clean and open Internet: Public consultation on proceduresfor notifying and acting on illegal content hosted by onlineintermediaries
Questionnaire on multiple pages
IntroductionTheE-commerce Directiveprovides a framework for the cross-border provision of online services inEurope. It includes so-called exemptions from liability for online "intermediary service providers". Inparticular, it provides that online service providers may not be held liable for illegal content that they"host" on condition that:
the provider does not have 'actual knowledge' of illegal content and is not 'aware' of factsor circumstances from which the illegal content is apparent; orthe provider, upon obtaining such knowledge or awareness acts 'expeditiously' to removeor disable access to the content (Article 14 E-commerce Directive).
This rule forms the basis for so-called "notice-and-action" (N&A) procedures. These procedures startwhenever someone“notifies”a hosting service provider about illegal content on the internet. Theprocedures are concluded when an online intermediaryactsagainst the alleged illegal content. Actingmay take the form of removing or disabling access to the illegal content.In 2010 the Commission held a public consultation on the future of e-commerce and the implementationof the E-commerce Directive. The vast majority of the 420 respondents considered that the principlescontained in the E-commerce Directive are still valid and asked the Commission not to propose a revisionof the Directive. However, many respondents asked for clarifications of certain articles in the Directive,notably Article 14 and the functioning of N&A procedures. The consultation made clear that respondentsconsider that there are three main problems with the functioning of N&A procedures:
online intermediaries face high compliance costs and legal uncertainty because theytypically have operations across Europe, but the basic rules of Article 14 are interpretedin different ways by different national courts (sometimes even within the same MemberState). In particular the terms "actual knowledge", "awareness" and "expeditiously" haveled to diverging national case-law. Notice providers and hosting providers have to adapttheir practices in accordance with these interpretations.illegal content stays online too long. This is partly due to what is perceived as a lack ofsufficiently clear rules and easily identifiable procedures.fundamental rights are not always respected. In particular, there are instances wherelegal content is taken down, which can amount to a restriction of the right to freedom ofexpression and information. This arises partly as a result of liability fears on the part of
hosting providers and the fact that the providers of alleged illegal content are in generalnot consulted before a hosting service provider takes action.In order to address these challenges, the Commission announced an initiative on N&A procedures in theCommunicationon e-commerce and other online services. TheStaff Working Paperaccompanying theCommunication presents an overview of the implementation of Article 14 and the functioning of N&Aprocedures in the EU. Subsequently, the Commission engaged in a fact-finding exercise on notice-and-action procedures which included targeted stakeholder consultations. The Commission now wishes toobtain the view of all stakeholders on specific issues related to the functioning of N&A procedures inEurope in the context of Article 14 of the E-commerce Directive. The responses will assist the Commissionin shaping the N&A initiative.The public consultation is available in English, French and German. Responses can be in any of the 23official languages of the EU, but replying in English, French or German would enable Commission servicesto process them more quickly. Answers to the questions must be sent by using the electronic application'IPM' (Interactive Policy Making). The electronic version of the public consultation is available here. Theviews expressed in this public consultation may not be interpreted as stating an official position of theEuropean Commission.
Glossary
"(Online) intermediary service providers"provide online services (1) that consist oftransmitting or storing content that has been provided by a third party. The E-commerceDirective distinguishes three types of intermediary services: mere conduit (transmittingof data by an internet access provider), caching (i.e. automatically making temporarycopies of web data to speed up technical processes) and hosting (see below)."Illegal content"corresponds to the term "illegal activity or information" used in Article14 of the E-commerce Directive. This directive does not further specify this term. It maybe understood in a wide sense so as to include any infringement of applicable EU ornational laws and regulations. This could for instance include defamation terrorismrelated content, IPR infringements, illegal online gambling, child abuse content,misleading advertisements or incitement to hatred or violence on the basis of race,origin, religion, gender, sexual orientation etc."Hosting",according to Article 14 of the E-commerce Directive, is the “storage of(content) that has been provided by the user of an online service”. It may for instance bestorage of websites on servers. It may also include the services offered by online marketplaces, referencing services and social networks.A"notice provider"is anyone (a natural or legal person) that informs a hosting serviceprovider about illegal content on the internet. It may for instance be an individualcitizen, a hotline or a holder of intellectual property rights. In certain cases it may alsoinclude public authorities.A"notice"is any communication to a hosting service provider that could give the latterknowledge of a particular item of illegal content that it hosts. It could therefore createan obligation for it to act expeditiously by removing the illegal content or
disabling/blocking access to it if the provider wishes to be exempted from liability underArticle 14 of the E-commerce Directive. Such an obligation only arises if the noticeprovides the hosting service provider with actual knowledge of illegal content.
A"provider of content"in the context of a hosting service is the user of that service. Aprovider of content is for instance someone who posts a comment on a social networksite or uploads a video on a video sharing site."Action",for the purpose of this consultation, means removing (taking down) or disablingaccess to illegal content. According to Article 14 of the E-commerce Directive, if theprovider wishes to be exempted from liability, a hosting service provider should act "toremove or disable access" to illegal content once the provider becomes aware of it.
(1) The E-commerce Directive uses the term “information society service”.
I. Background informationThis consultation is addressed to the public in general/broadest public possible, as it is important to getthe views and input from all the interested parties and stakeholders. In order to best analyse theresponses received after the consultation, and to maximise their usefulness, we need to have a limitedamount of background about you as a respondent.
1. Please indicate your role for the purpose of this consultation:IndividualCivil society associationHosting service providerInternet access provider
*(compulsory)Public authority / LawenforcementIntellectual property rightsholderBusiness federationResearch institution / ThinktankOther
Private company (not hosting service provider or internet accessprovider)Hotline
Ministry of Business andGrow thSlotsholmsgade 10-121216 Copenhagen KDenmark
2. Please indicate your place of residence or establishment:Denmark
*(compulsory)
3. Please provide your contact information (name, address and e-mail address):Danish Business AuthorityLangelinie Alle 172100 Copenhagen ØDenmarkAtt.: Jesper Fejerskov[email protected]
*(compulsory)
4. Is your organisation registered in the Interest Representative Register?YesNoNot relevant
*
(compulsory)
5. What is /are the category /ies of illegal content of greatest relevance to you in the context of N&Aprocedures?
*(compulsory)
Illegal offer of goods and services (e.g. illegal arms, fake medicines, unauthorised gambling servicesetc.).Illegal promotion of goods and services.Content facilitating phishing, pharming or hacking.Infringements of copyright and related rightsInfringements of trademarksInfringement of consumer protection rules.Incitement to hatred or violence (on the basis of race, religion, gender, sexual orientation etc.)Child abuse contentTerrorism related content (e.g. content inciting the commitment of terrorist offences and trainingmaterial)DefamationPrivacy infringements
Other:Not applicable
II Notice and Action procedures in EuropeIn 2010 the Commission consulted the public on the future of e-commerce and the implementation of theE-commerce Directive. The public consultation included questions on the liability exemptions for onlineintermediaries, the interpretation of Article 14 of the E-commerce Directive and notice-and-actionprocedures. These responses have been reflected in aStaff Working Paperaccompanying the E-commerce Communication.Many of these responses indicated that there are difficulties with the interpretation of Article 14 of the E-commerce Directive. Article 14 defines hosting as"an information society service (..) that consists of thestorage of information provided by a recipient of the service".It provides that a provider shall not beliable for hosted illegal content on condition that:"a) the provider does not have actual knowledge of illegal activity or information and, as regards claimsfor damages, is not aware of facts or circumstances from which the illegal activity or information isapparent; orb) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disableaccess to the information" The Commission would now like to have an updated vision of stakeholdersregarding notice-and-action procedures".
The Commission now would like to obtain an updated vision of stakeholders regarding notice-and-action procedures in the context of Article 14 of the E-commerce Directive.
6. To what extent do you agree with the following statements on notice-and-actionprocedures?I completelyagreeAction againstillegalcontent isoftenineffectiveAction againstillegalcontent isoften tooslowHostingserviceprovidersoften takeaction againstI agreeI disagreeI completelydisagreeNoopinion
X
X
X
legalcontentThere is toomuch legalfragmentationanduncertaintyfor hostingserviceproviders andnoticeproviders
X
7. To what extent do you agree with the following statements on Article 14 of the E-commerce Directive?I completelyagreeThe exactscope of'hosting' issufficientlyclearThe terms“actualknowledge”and“awareness”are sufficientlyclearThe term“expeditiously”is sufficientlyclearI agreeI disagreeI completelydisagreeNoopinion
X
X
X
The public consultation on e-commerce of 2010 has demonstrated that moststakeholders consider hostingof websitesto be hosting, but that there is less unanimityon other services that could be hosting. The CJEU has stated that hosting may inprinciple be the services of online market places, referencing services and socialnetworks.8. In your opinion, what activities should be considered as 'hosting'?Social networksVideo-sharing sitesE-commerce platformsSearch enginesCyberlockers
*(compulsory)
Blogs and interactive dictionariesCloud based servicesOtherNone of the aboveNo opinion
Please specify:Some of the mentioned activities may very well be considered to be “hosting” or to includeelements hereof, whereas others may not. Unfortunately, the possible “hosting”-aspects of thementioned services are unclear and the question cannot be answered satisfactorily. The ECJ hasto some extent specified the definition. The Danish Government supports the development of aclear, generic concept of “hosting” and a definition of which services are considered to be“hosting” and welcomes the Commission’s guidance on the subject.
III. Notifying illegal content to hosting serviceprovidersThe E-commerce Directive does not use the terms "notifying" or "notice". The CJEU has clarified that onepossible way to become aware of illegal content is that a hosting service provider is "notified" of suchcontent. However, the CJEU has held that a notice cannot automatically lead to awareness of illegalcontent. If the notice is "insufficiently precise or inadequately substantiated" the notice does not makethe hosting service provider aware of illegal content�.EU law does not contain rules on the availability and accessibility of means to notify as referred to above.Some notice providers, however, have complained that mechanisms for notifying illegal content are notalways in place or not always easy to use or to find.
� Judgment of the Court of Justice of the European Union of 12 July 2011 in case C-324/09 (L'Oréal – eBay), points 121-1229. To what extent do you agree with the following statements?I completelyagreeIt is easy tofind pages ortools to notifyillegalcontentIt is easy touse pages ortools to notifyillegalcontentI agreeI disagreeI completelydisagreeNoopinion
X
X
10. Should all hosting service providers have a procedure in place which allows them to be easily notifiedof illegal content that they may be hosting?YesNoNo opinion
*(compulsory)
Please specify:It is recognised that such procedures would improve the process of Notice and Action. Such anobligation should be flexible, balanced and proportionate to the infringements and the servicesin question.
Some hosting service providers have voluntarily put in place mechanisms to receivenotifications of illegal content. Some of these providers have complained that theirmechanisms are not always used and that concerns about content are not notified in amanner that would be easy to process (e.g. by fax, without sufficient information toassess the alleged illegal character of content etc.). Providers also claim that thiscreates delays in taking action against illegal content, because the hosting serviceprovider would for instance have to contact the notice provider to ask for additionalinformation.11. If a hosting service provider has a procedure for notifying illegal content (such as a web form designedfor that purpose) that is easy to find and easy to use, should illegal content exclusively be notified bymeans of that procedure?YesNoNo opinion
*(compulsory)
Although the CJEU indicated that a notice should be sufficiently precise and adequatelysubstantiated to have effect, it has not indicated how these requirements should bemet for this purpose. Nor has this been specified in the E-commerce Directive.12. Do you agree with the following statements?YesXXNoNo opinion
A notice should besubmitted by electronicmeansA notice should containcontact details of thesender
A notice should make iteasy to identify thealleged illegal content(for instance byproviding a URL)A notice should containa detailed descriptionof the alleged illegalnature of the contentA notice should containevidence that thecontent provider couldnot be contacted beforecontacting the hostingservice provider or thatthe content providerwas contacted first butdid not act
X
X
X
Both civil rights organisations and hosting service providers have complained about asignificant proportion of unjustified or even abusive notices. Some stakeholders haveproposed more effective sanctions and remedies for this purpose.13. Should there be rules to avoid unjustified notifications?YesNoNo opinion
*(compulsory)
Please specify:Businesses should not be harassed or burdened with unjustified notifications. Unjustifiednotifications should be kept to a minimum. Such rules, guidelines, sanctions or remedies shouldbe flexible, balanced and proportionate to the infringements and the services in question.
14. How can unjustified notifications be best prevented?
*(compulsory)
By requiring notice providers to give their contact details
By publishing (statistics on) noticesBy providing for sanctions against abusive noticesOtherNo action required.No opinion
Businesses should not be harassed or burdened with unjustified notifications. Unjustifiednotifications should be kept to a minimum. Such rules, guidelines, sanctions or remedies shouldbe flexible, balanced and proportionate to the infringements and the services in question.A qualification of a given notice by means of requirements of a minimum degree of content, dueprocess and/or prior action by the notifying party (as expressed in the answers to question 12)may impede unjustified notifications.
IV. Action against illegal content by hostingservice providersHosting service providers, across Europe, react differently when they receive noticeabout content. For instance, some ensure a quick feedback to notice providers bysending a confirmation of receipt when they receive a notice and informing the noticeprovider when the requested action has been taken. Others do not. Similarly, someonline intermediaries consult the provider of alleged illegal content whenever theyreceive a notice and offer the content providers the opportunity to give their views onthe allegation of illegality concerning the content (the so-called “counter-notice”).Other providers do not consult the content provider.15. Should hosting service providers provide feedback to notice providers about the status of theirnotice?
*(compulsory)
YesNoNo opinion
The hosting service provider should send a confirmation of receipt.The hosting service provider should inform the notice provider of any action that is taken.Other
Please explain:
Any such requirements should be flexible, balanced and proportionate to the infringements andthe services in question.
16. Should hosting service providers consult the providers of alleged illegal content?YesNoNo opinion
*(compulsory)
Upon reception of a notice, but before any action on the alleged illegal content is taken. This wouldavoid the disabling of legal content or it been taken down.Once any action against the content is taken. If it appears that the content was actually legal, itshould be re-uploaded.Other
The contention of the legality of content should be an issue between the notifying party and theprovider of content. Hosting providers should not be held or made accountable for reaction ornon-reaction in cases where the legality of content is contested.Any such requirements should be flexible, balanced and proportionate to the infringements andthe services in question.
According to the E-commerce Directive, the hosting provider should act "to remove or todisable access to the information"- One may interpret "removing" as permanently taking down or deleting content.- "Disabling access" can be understood as any technique that ensures that a user doesnot have access to the content. Some hosting service providers for instance use geo-software to impede access exclusively to users with an IP address from a country wherethe content is question is considered illegal. Similarly, some hosting service providersfirstly impede access to all users without permanently deleting it. This can for instanceallow law enforcement authorities to further analyse the alleged illegal content in thecontext of criminal investigations. If deleting would not any longer hinder theinvestigation, the hosting service provider may still remove the content.17. Assuming that certain content is illegal, how should a hosting service provider act?The hosting service provider should remove the illegal contentThe hosting service provider should first disable access to the illegal contentThe hosting service provider should either remove or disable access. The sequence is not important.Other
*(compulsory)
No opinion.
Please explain:Any such requirements on action should be flexible, balanced and proportionate to theinfringements and the services in question. It should be up to the hosting provider to acteffectively. Actions should be specific and not in any way affect or impede the provision ofaccess to legal or un-notified and therefore presumably legal content.
Several providers may host the same content on a particular website. For instance, aparticular 'wall post' on the site of a social network may be hosted by the social networkand by the hosting service provider that leases server capacity to the social network. Itmay be that this hosting service provider that leases server capacity is in a position toact against the alleged illegal content, but not without acting against other (legal)content.18. When the same item of illegal content is hosted by several providers, which hosting service providershould act against it?
*(compulsory)
The hosting service provider that is aware of the illegal content, but is not technically in a position toremove or disable only that illegal content and would for instance have to take down an entire siteThe hosting service provider that is aware of the illegal content and is technically in a position toremove exclusively the notified illegal contentOtherNo opinion
Please specify:
As soon as the illegal nature of certain content has been confirmed, the E-commerceDirective requires the hosting service provider to act"expeditiously"if the provider is tobe exempted from liability. However, the Directive does not further specify the conceptof "expeditiously". Some stakeholders consider that a pre-defined timeframe for actionshould be established, whereas others consider that the required speed of actiondepends on the circumstances of the specific case. In a specific case it may be difficultto assess the legality of content (for instance in a case of defamation) or it may be easyto do so (for instance in a manifest case of child abuse content). This may have animpact on the speed of action. Similarly, what is expeditious for a specific category ofcontent may not be sufficiently expeditious for another. For instance, the taking downof content within 6 hours will generally be considered very fast, but may not besufficiently fast for the live-streaming of sports events (that are not any longer relevantonce a match is finished).19. Once a hosting service provider becomes aware of illegal content, how fast should it act?
*(compulsory)
As fast as possible depending on the concrete circumstances of the case
Within a predefined time periodOther
In individual cases, law enforcement authorities may ask hosting service providers not to act expeditiously on certainillegal content that are the subject of criminal investigations. Acting expeditiously could alert law infringers of theexistence of a criminal investigation and would impede analysing the traffic on a particular site.
20. Should hosting service providers act expeditiously on illegal content, even when there is a requestfrom law enforcement authorities not to do so?YesNoNo opinion
*(compulsory)
Civil rights organisations complain that hosting service providers sometimes take downor disable access tolegalcontent. They claim that some hosting service providersautomatically act on notices without assessing the validity of the notices. In thiscontext, the CJEU has held that blocking of legal content could potentially underminethe freedom of expression and information.21. How can unjustified action against legal content be best addressed/prevented?By requiring detailed noticesBy consulting the content provider before any action is takenBy providing easy and accessible appeal proceduresBy publishing (statistics on) noticesBy providing for sanctions against abusive noticesNo action requiredOtherNo opinion
*(compulsory)
Please specify:
The illegal nature of notified content should in all cases be unequivocally confirmed orproven. This obligation should be placed on the notifying party and/or the content provider.
This test of legality should not burden a hosting provider. Hosting providers should not be heldliable for unconfirmed or falsely confirmed notifications or errors in that regard. Actions should
be specific and not in any way affect or impede the provision of access to legal or uncontestedand therefore presumably legal content.
Some hosting service providers are hesitant to take pro-active measures to preventillegal content. They claim that taking such measures could be interpreted by courts asautomatically leading to "actual knowledge" or "awareness" of all the content that theyhost. This would accordingly lead to a loss of the liability exemption they enjoy underthe respective national implementation of the E-commerce Directive. In at least onenational ruling, a court has interpreted actual knowledge in this sense. At the sametime, the CJEU has held that awareness can result from own initiative investigations(Judgment of the Court of Justice of the European Union of 12 July 2011 in case C-324/09 (L'Oréal – eBay), points 121-122).22. In your opinion, should hosting service providers be protected against liability that could result fromtaking pro-active measures?YesNoNo opinion
*(compulsory)
VI. The role of the EU in notice-and-actionproceduresThe E-commerce Directive encourages voluntary agreements on "rapid and reliable procedures forremoving and disabling access" to illegal content. It also obliges the Commission to analyse the need forproposals concerning "notice-and-takedown" procedures.
23. Should the EU play a role in contributing to the functioning of N&A procedures?YesNoNo opinion
*(compulsory)
By encouraging self-regulationBy providing non-binding guidelines
By providing some binding minimum rulesBy providing binding detailed rulesA combination of these optionsOther
Please specify:Any such requirements should be flexible, balanced and proportionate to the infringements andthe services in question.
Article 14 of the E-commerce Directive does not specify the illegal content to which it relates. Consequently, thisarticle can be understood to apply horizontally to any kind of illegal content. In response to the public consultationon e-commerce of 2010, stakeholders indicated that they did not wish to make modifications in this regard.
24. Do you consider that different categories of illegal content require different policy approaches asregards notice-and-action procedures?YesNo
*(compulsory)
VII. Additional commentsIf you have additional comments, you have the possibility to upload these in a separate document here.We would ask you to only use this option for comments you have not already expressed when answeringthe questions above.
25. Do you wish to upload a document with additional comments?(optional)YesNo
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