Last month, the European Commission published the paper Towards an enhanced responsibility of online platforms concerning the fight against illegal online content. The Commission states that its aim is to “facilitate and intensify the implementation of good practices for preventing, detecting, removing and disabling access to illegal content”. It is hoped that the implementation of its guidelines will “ensure the effective removal of illegal content, [provide] increased transparency and [enhance] the protection of fundamental rights online”. Illegal online content is becoming more and more prevalent and its accessibility is increasing. The Commission considers that removing illegal online content “represents an urgent challenge” for online providers as this content poses “a serious threat to security and safety, as well as to the dignity of victims”.
Purpose of the paper
The paper expressly targets internet service providers (ISPs), and has a general application across all forms of illegal online content. The Commission explains that “what is illegal offline is also illegal online”. The Commission also states that online platforms should “decisively step up their actions” to prevent the spread of illegal online content noting the responsibilities they have derived as a result of their “central role in society”. The paper broadly covers three areas:
- Detecting and notifying illegal content;
- Removing illegal content; and
- Preventing the reappearance of illegal content.
What effect will this have?
The paper will be welcomed by intellectual property right owners. Although the guidance is not legally binding, a point expressly recognised by the Commission, it is hoped that this will enhance existing legislation and also support the proposed provisions in the new Audiovisual Media Services Directive.
Copyright infringement is already being tackled by ISPs with the development of technologies such as automatic content recognition. The Commission notes that this has been “proven [as] an effective tool for several years”. The Commission actively supports “further research and innovative approaches” in order to improve the detection of illegal online content and encourages the industry to adopt new technologies which have been or are being developed in order to increase “efficiency and effectiveness of automatic detection procedures”. It also recognises that this technology can also be used to prevent the re-appearance of illegal content. Online content which has already been identified as illegal can be detected by ‘fingerprinting’ this and ‘filtering’ it out.
A number of concerns have been raised by the European Internet Service Providers Association (EUISPA). The EUISPA has argued that “privatised enforcement undermines due process and natural justice, a key underpinning for the enjoyment of fundamental rights”. There is also concern that the guidelines will “force online intermediaries to play judge, jury and executioner with regard to online content control”. The EUISPA also has concerns about the lack of clarity over what type of content may be considered as ‘illegal’. The domestic laws of Member States vary considerably and the EUISPA notes the “need for clear and specific judicial guidance” on what constitutes illegal online content.
This Commission paper recognised the potential for “erroneous decisions” resulting from the use of automatic content filters but suggested ways in which these could be limited. For example, “a reversibility safeguard should be available for erroneous decisions, and the use and performance of this technology should be made transparent in the platforms' terms of service”.
There is also concern that such stringent measures may impact the fundamental right to freedom of expression. Evidently there is a tension between protecting this right and strict implementation of the new guidelines. The Commission recognised the potential for difficulty here noting the “need for fast and effective removals of illegal content and prevention and prosecution of crimes [while] safeguarding the right to free speech online.” To address this, the Commission suggests that ISPs should attempt to foresee potential instances of ‘over-removal’ and again develop and adopt ‘adequate safeguards’.
Possible future measures
ISPs could be considered as the obvious bodies to progress the fight against illegal online content as the gateways to the internet. Due to the volume of content uploaded online every second, ISPs are best positioned to monitor or filter content before it enters the public domain.
While the guidelines issued are non-binding in nature, the Commission “expects online platforms to take swift action over the coming months”. The possibility of introducing further, binding measures remains open with the Commission advising that it will “monitor progress and assess whether additional measures are needed”. These expressly include possible legislative instruments which could formalise these guidelines. Any legislative measures could also provide greater clarity to ISPs as to exactly what constitutes ‘illegal online content’.