The European Commission could ask ISPs to block content, and ask payment providers to withold money on demand from rights-holders, following a policy announcment released today. The much-awaited announcement sets out EU official policy on the Internet and e-commerce. It follows a review of the E-commerce directive by the Commission.
The E-commerce directive to date has been the protector of the open Internet, notably the mere conduit provision. (See Why we should protect 'mere conduit' and reject the copyright amendments ). The review sets out pivotal changes which threaten that protecting role of mere conduit. Notably, the Commission wants to introduce a pan-European notice and action scheme. This is based on other ‘notice and takedown’ schemes (such as the one in the American DMCA law) but with an important difference. The proposed EU scheme uses the word ‘action’ instead of ‘takedown’, where action could mean asking hosts to take down content, but also would seem to mean blocking of content by ISPs on request:
“The notice and action procedures are those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification. The intermediary may, for example, take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online.”
The notice and action scheme was previewed on iptegrity.com in December last year: EU gives notice of net blocking schemes
In addition, the Commission wants to bring payment providers into ‘co-operation’ schemes between ISPs and rights-holders.This would mean asking the likes of PayPal, Mastercard, and Visa to block payments to websites or content providers, at the request of rights-holders:
“Cooperation between stakeholders, in particular internet providers, rights-holders and payment services, in the European Union and the US, may also help to combat illegal content.”
Both the notice and action, and the payment ‘co-operation’ schemes pre-empt another European Commission review – the IPR Enforcement directive (IPRED). The IPRED review will consider EU-wide policy for enforcing copyright on the Internet. It is not clear whether the payments ‘co-operation’ would be positioned within the e-commerce directive or IPRED, or both.
Both directives are under the remit of the French Commissioner Michel Barnier, who is understood to be close to President Sarkozy.
From an EU citizens’ persepective, the EU is heading down a very slippery slope with these policy proposals. The advocacy group La Quadrature du Net has signalled that the E-commerce directive review could represent an erosion of rights, notably where ‘action’ or payment suppression is conducted in an extra-judicial process.
Overall, the E-commerce directive review suggests the European Commission is making a formal link between copyright and Internet policy, as predicted in my book The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’ . The book explains a preceding policy initiative, the EU Telecoms Package, where the term ‘co-operation’ in the context of copyright and the Internet was first used in a policy context.
For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package
You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Academics – please cite as Monica Horten, EU gives notice of net blocking schemes www.iptegrity.com 11 January 2012 . Commercial users - please contact me.