Mere conduit and liability exemptions for hosting companies are under threat with the E-commerce directive review.

The European Commission review of the E-commerce directive closes this week. The review is a standard part of the policy process. What's non-standard is how the Commission is turning the focus of the Review in favour of corporate lobbyists.

The review is headed 'A Clean and Open Internet'. The Commission has been talking for some time now about the 'open character of the Internet'. But the insertion of the word 'clean' and its use as the spearhead for the review of this very important directive is new. It has implications that must be questioned.

The review brushes over the majority of the directive. It excludes, for example, provisions related to online advertising and contracts for sale of goods online). Instead, the review concentrates on the one aspect, namely the mere conduit provision and the hosting provision.

This is not totally a surprise, given that these provisions have been the target of the copyright and trademark industries for a long time ( see my book The Copyright Enforcement Enigma ).

What is concerning is that the review appears to have already taken a policy decision. It is a decision that, in the wake of the ACTA rejection by the European Parliament, will be highly controversial.

This policy decision is indicated in the phrase 'Notice and Action'. The EU legal framework does not currently have any form of Notice procedures for getting content taken down.

Notice and action is an idea based on the US-style (DMCA) Notice and Takedown, but it goes much further. It incorporates the full wish-list of the copyright industries and law enforcement agencies, such as blocking of content using deep packet inspection methods, removal of payment facilities, and domain seizure.

The Commission hides the extent of Notice and Action in its consultation, using the language of the directive namely 'removal or disabling access to information'. But the meaning is apparent from other, related documents.

Moreover, the Commisson appears to be trying to re-write history. It says that Article 14 forms the basis for Notice and Action procedures. That was certainly not the intention of Article 14.

The E-commerce directive, with its provisions for mere conduit and exemptions on the liabiilty was the result of a political compromise thrashed out in 2000 between the ISP industry and others, such as the copyright industries, who wanted it to incorporate a notice and takedown regime. However, that notion of notice and takedown was explicitly rejected.

However, it is implied in the Consultation introduction that the Commission wants to Amend Article 14 in order for it to become the basis of Notice and Action.

The Commission says that it has engaged in a fact-finding exercise on notice and action, including 'targetted stakehold consultations' but it does not provide details on who the targetted stakeholders were.

Reading the policy output, it looks very like those targetted stakeholders belonged in the copyright and IPR industries and law enforcement authorities.

The E-commerce directive has thus far protected the EU legal framework against attempts to insert copyright enforcement provisions for the Internet. In that context, it has had the effect of protecting freedom of expression.

This policy proposal will pull down that protection and expose the Internet - and content providers - to a regime of corporate and police controls.

The word 'clean' in the European Commission's title begins to have oppressive and unsanitary overtones.

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For more on the importance of mere conduit and how it held back the copyright industries - see my book -The Copyright Enforcement Enigma '(an accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology)

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Respond to the European Commission consultation on the E-commerce directive - you must do so by the closing date of 5 September:

A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries

Update - the deadline has been extended to 11 September.

This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, E-commerce directive review - what is a clean Internet?, www.iptegrity.com, 2 September 2012 . Commercial users - please contact me.

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