Earlier this summer, the European Commission published its eagerly awaited Digital Single Market Strategy for Europe (see here). Its DSM Strategy is wide-ranging and incredibly ambitious, seeking to create a Digital Single Market by focussing on three ‘pillars’ with the overall objective of generating significant economic growth in Europe. This article summarises the Commission’s aims on the contentious issue of the role that online platforms and intermediaries should play in combating illegal online content.
What is a Digital Single Market?
In the Commission’s mind, a Digital Single Market encapsulates the following principles:
- ensuring the free movement of goods, persons, services and capital
- being able to seamlessly access and exercise online activities under conditions of fair competition
- enjoying a high level of consumer and personal data protection
The Commission’s Strategy to create this Digital Single Market is built on three ‘pillars’:
- better access to online goods and services
- creating the right conditions for digital networks and services to flourish
- maximising growth potential of the European Digital Economy
There are a number of initiatives (sixteen in total) underlying these three pillars, which provide varying degrees of underlying detail. One of the initiatives within the second pillar above is to create a ‘fit for purpose’ regulatory environment for platforms and intermediaries.
Liability of Online Intermediaries: a brief recap
The potential liability of online service providers for third party content is a thorny issue requiring a delicate balance to be struck: fostering growth of the digital economy on the one hand, whilst not hampering the protection of IP rights on the other.
The first attempt to regulate the issue at an international level was attempted in 1996 with the WIPO Copyright Treaty, which resulted in the e-Commerce Directive being adopted in Europe and the Digital Millennium Copyright Act (DMCA) in the US. In both continents it was felt that nurturing the digital economy required, amongst other things, the protection of Internet Service Providers (ISPs) from potential unlimited liability for third party content in circumstances where their role was limited to transmitting, hosting and conveying third party information to the public.However, since the e-Commerce Directive and DMCA were adopted at the turn of the millennium, there have been dramatic shifts in the digital landscape including in the roles and activities played by online intermediaries:
- At the time of the e-Commerce Directive/DMCA, the ISPs’ primary role was essentially technical (e.g. network operators, internet access providers, data processors, web hosting providers) with little or no involvement in the production and/or management of content.
- In recent years however, new players have emerged to provide web users with new kinds of ‘intermediary’ services such as social networking sites, music/video sharing platforms, online marketplaces, web aggregators etc. Moreover, the lines demarcating the different categories of intermediaries that were historically involved in the online world have become blurred. Alongside these changes, we have seen a drastic growth of online piracy driven in part by technical advances such as high-speed internet.
In those circumstances, there have been increasing calls for the regulatory framework underpinning the liability of online intermediaries to be reviewed.
The Commission’s stance on online intermediary liability
In its DSM Strategy, the Commission has highlighted how conflicting jurisprudence at national level and fragmentation of rules on notice-and-takedown (NTD) procedures across the EU leads to legal uncertainty which hampers growth and innovation and undermines enforcement initiatives. Moreover, the current approach to disabling access to or removing content was felt to be slow and complicated, and sometimes leading to legal content being taken down erroneously. As noted by the Commission in its DSM Strategy,
“It is not always easy to define the limits on what intermediaries can do with the content that they transmit, store or host before losing the possibility to benefit from the exemptions from liability set out in the e-Commerce Directive.”In relation to online illegal content, the Commission’s aim is to review how this issue can be tackled more effectively via the NTD procedure in a way which has due regard for the freedom of expression and information whilst avoiding the removal of legal content. The Commission will also analyse whether online intermediaries should “exercise greater responsibility and due diligence in the way they manage their networks and systems”.
The Commission’s intention is to launch a “comprehensive assessment” of the role played by online intermediaries and platforms before the end of 2015, covering not just the issue of illegal online content, but other areas such as
- transparency, e.g. in search results
- platforms’ usage of the information they collect
- relations between platforms and suppliers
- constraints on the ability of individuals and businesses to move from one platform to another
At present, we have scant detail of the Commission’s intentions beyond these high level points, although it is hoped that further insight will be provided in the coming months. It remains to be seen whether the Commission will meet the ambitious timescales set out within the DSM Strategy which covers other major complex issues including reforming copyright, tackling unjustified geo-blocking and reviewing cross-border contract rules.