The European Commission has commenced a public consultation on the procedures for notifying and acting on illegal content hosted by online intermediaries.  The Commission wishes to obtain the view of all stakeholders on specific issues related to the functioning of Notice-and-Action ("N&A") procedures in Europe in the context of Article 14 (the hosting defence) of the E-commerce Directive. The responses will assist the Commission in shaping the future of N&A initiatives.

Three main problems the Commission sees with the functioning of the current N&A procedures are identified as follows:

  • online intermediaries face high compliance costs and legal uncertainty because they typically have operations across Europe, but the basic rules of Article 14 are interpreted in different ways by different national courts (sometimes even within the same Member State). In particular the terms "actual knowledge", "awareness" and "expeditiously" have led to diverging national case-law;
  • illegal content stays online too long. This is partly due to what is perceived as a lack of sufficiently clear rules and easily identifiable procedures; and
  • fundamental rights are not always respected. In particular, there are instances where legal content is taken down, which can amount to a restriction of the right to freedom of expression 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 general not consulted before a hosting service provider takes action. 

The deadline for submitting a response is 5 September 2012.  It is a public consultation although contributions are particularly sought from hosting providers and organisations that notify illegal content.  Further information can be found here.