European framework for 'notice and take down' procedures
07 February 2012
|
The European Commission has announced plans to
create a European framework for "notice-and-take down"
procedures. These are procedures under which internet
intermediaries either remove or block access to illegal content,
usually after receiving a request to do so.
An effective notice and take down procedure is
essential to internet hosts if they are to benefit from the
"hosting defence" under Article 14 of the Ecommerce
Directive. Under Article 14, a host is not liable for third
party information that it stores provided that it does not have
actual or constructive knowledge that the information is
illegal. If the host acquires such knowledge, then in order
to benefit from the defence, the host must act expeditiously to
take down the information or block access to it. The defence
shields the intermediary from civil and criminal liability, but not
from injunctions.
The European Commission recently conducted a
wide-ranging public consultation on the Ecommerce Directive,
including the hosting defence. Respondents complained that
notice and take-down mechanisms differ from one Member State to
another and are often unclear.
- Some Member States have introduced specific
notice-and-take-down laws, for example in relation to
terrorism-related information (the UK), child abuse/pornography
(Italy, France, Germany) and infringing content (Finland,
Lithuania).
- Some Member States have set a time limit
within which intermediaries must take down or block access to
illegal information.
- National courts take different approaches
when deciding whether an intermediary has "actual knowledge".
|
|
|
The Commission's view is that further work is
needed to make notice-and-take-down procedures more coherent across
the EU. It hopes that an EU-wide framework will achieve this,
creating legal certainty for stakeholders. The Commission plans to
hold a consultation to address issues such as:
- How intermediaries should be notified of
illegal content
- The information that should be contained in
the notice, such as the URL of the offending site
- Whether the provider of alleged illegal
content should have a right of reply
- How fast intermediaries should act in
relation to illegal content
- Whether companies should be more transparent
about their notice-and-take-down procedures.
We will continue to monitor and report to our
clients on developments in this area.
Related articles:
EU review of Ecommerce Directive
For more information please contact
David Naylor, Partner in the Technology and Outsourcing Group at Field Fisher Waterhouse LLP.