Notification and acting on illegal content hosted by online intermediaries

The European Commission is consulting on procedures for notifying and acting on illegal content hosted by third party intermediaries.

The Commission believes that this is necessary for the following reasons: lack of legal certainty and predictability resulting from conflicting jurisprudence and fragmentation of notice and take-down procedures (NTDs) across the EU is preventing innovation and growth; alleged too limited or too slow take-down of illegal information; lack of transparency on internet intermediaries' individual NTD procedures; Instances of conflicts with fundamental rights such as the freedom of expression, data protection, protection of privacy and the right of a fair process.

What are notice and take down procedures?

Notice-and-takedown (NTD) procedures concern removing or disabling access to illegal information or activities on the internet by internet intermediaries (such as video-sharing sites, internet access providers, search engines or social networks), following notification.

Individual businesses apply their own NTD rules and procedures, and in recent years a number of Member States has adopted legislation on such procedures, such as on copyright infringements, but also as regards child pornography or terrorism related illegal information.

These regulatory developments have stimulated debates on the freedom of speech, data protection and the right of internet access, as well as on innovation, security and the dangers of internet in particular for vulnerable groups.

Electronic Commerce Directive

The E-Commerce Directive (Directive 2000/31/EC - see UK E-commerce Regulations) contains a scheme for the exemption of liability for certain internet intermediary services (mere conduit, caching and hosting), on the basis that the intermediaries act when notified of (alleged) illegal content. The Directive provides therefore a basis for notice and takedown procedures without regulating them. It also encourages the establishment of European self-regulatory NTD procedures, and it obliges the Commission to assess the functioning of these NTD procedures when evaluating the Directive. NTD procedures can tackle all forms of illegal information and activities and therefore cover many situations:from infringements of intellectual property rights (IPR) and illegal gambling sites to slander, defamation and unlawful sales of medicines. The impact assessment on the revision of the Intellectual Property Rights Enforcement Directive will address the role of all intermediaries including online intermediaries in assisting to inhibit differing forms of IPR infringements. The Commission proposal for a Directive on Child Abuse aims at introducing an obligation for Member States to ensure that child pornography is taken down.

In the second half of 2010 the Commission held a public consultation on electronic commerce and on the ECommerce Directive. A vast majority of the 420 respondents to the consultation expressed concerns about the fragmentation of NTD procedures throughout the EU. The Communication on e-commerce and other online services (to be adopted in December 2011) with an accompanying Staff Working Document will explore the issues related to NTD more in detail, and set out a vision on the future of e-commerce and other online services within the EU.