EUU, Alm.del - 2011-12 - Bilag 588: Høringsnotat og høringssvar vedr. høring om procedurerne for at notificere og reagere på ulovligt indhold, jvf e-handelsdirektivet.

The Danish Government welcomes the Commission’s initiatives on e-commerce and the consultation of all stakeholders on specific issues re-lated to the functioning of N&A procedures in Europe in the context ofArticle 14 of the E-commerce Directive.The Danish Government supports that N&A procedures and principlesare clarified and applied in a harmonised manner across Europe in orderto strengthen their effectiveness and the legal certainty of businesses,content providers and individuals, thus strengthening the digital singlemarket.When considering the clarification of the scope and application of N&Aprocedures across Europe the Danish Government would bring focus tothe central challenge of striking a balance between promoting economic,social and technological innovation and growth in the digital single mar-ket while also providing for effective procedures and measures address-ing illegal or infringing content such as N&A.In that light the Danish Government stresses that illegal or infringing con-tent is not acceptable while at the same time it must be avoided that legalcontent is affected or removed as a result of such procedures, includingN&A procedures. Further to this point the Danish Government stressesthat all aspects of N&A procedures should respect the unique open natureof the internet and the fundamental rights and civil liberties of enterprisesand individuals in Europe.In some cases it may be apparent that notified content is illegal or infring-ing. In other cases notification may be unjustified or the legality of thecontent may be unclear or contested. To this end the Danish Governmentrecommends that allegations of infringement or illegality of content madeby a notifying party should be sufficiently precise and adequately sub-stantiated. It should not be left to the discretion of a hosting provider todecide whether content is legal or not. The Danish Government invites

the Commission to consider and give guidance on how this burden ofproof could be lifted in a simple and expeditious way.The Danish Government invites the Commission to give attention andcaution to the proportionality of potential burdens that N&A procedurescould imply for hosting providers and related businesses in Europe in or-der not to hinder innovation or impede the evolution of new businessesand business models. The roles and responsibilities of the parties in-volved should be reasonable and proportionate. Issues of legality of con-tent is not a responsibility of the hosting service provider but rather an is-sue between the notifying party and if possible the content provider.Furthermore, it is the position of the Danish Government that hostingproviders should not be held accountable or liable for actions or lack ofaction in cases where the legality of content is contested or undocu-mented. To this end the principles of liability limitation as expressed inthe E-commerce Directive should be extended so hosting providers arenot held liable for unconfirmed, undocumented or falsely confirmed ordocumented notifications or errors beyond the hosting providers’ controlin that regard.Finally the Danish Government recommends that N&A requirementsshould be flexible, balanced and proportionate to the infringements andthe services in question. Actions should be specific and should not in anyway affect or impede the provision of access to legal or un-notified andtherefore presumably legal content.

Danish response to the Commission’s consultation “A Clean and

Open Internet: Public consultation on the procedures for notifying

and acting on illegal content hosted by online intermediaries”