The European Commission is struggling over a move to formalise the process for taking down web content.  This is the so-called ‘Notice and Action’, set out in the review of the IPR Enforcement directive (IPRED). It’s a highly controversial measure and post-ACTA the Commission is playing its own internal game of chicken in terms of how to move forward. From what can be ascertained, there is a directive on Notice and Action  has been prepared,  but internal wrangling is causing it to stall. 

 ‘Notice and Action’ is the name given to the procedure  whereby intermediaries such as ISPs or web hosts or payment companies, could be asked to either take down content, make it  invisible, or prevent payments to the owners.

It’s believed that the draft Notice and Action directive is circulating  somewhere in the inter-stitial processes of  the Commission.  The text could be  expected to clarify matters such as the responsibilities of hosts,  content owners, and those reuqesting the action,  as well as  the procedures for conveying  information between the relevant parties.

 The measure is  understood to be in response to the recent consultation exercise conducted by the Commission, and to originate from  DG  Internal Market  under Commissioner Michel Barnier.  However, it’s difficult call for the Commission to make.

On  the one hand, the European Commission wants to address the uncertainty that currently exists for businesses and users, because there is no formal procedure for notice and takedown in Europe. The Commission wants to formalise and structure the process by bringing out  out a directive, and in this regard it has some unexpected supporters.  On the other hand, with only a year to go until the European elections,  the Commission is concerned about the possibility for negative publicity over new copyright proposals.  It does not want a repeat of the ACTA street demostrations, with the kind of political pressure that they managed to bring.

 That’s why until now, it has been  fiddling  around with various inter-industry talks, where it can wash its hands of the outcome. However, there are those who believe that the Commission should take responsibility by putting forward a structured proposal of its own.

The political indecision is  said to go as high as the Commission President Jose-Manuel Barosso himself, who is understood to be against the move, along with, possibly, Information Society Commissioner Neelie Kroes.

European Digital Rights (EDRi), not usually a supporter of DG Markt,   has called on the  Commission to show leadership, taking the view that  legislation would provide greater legal certainty for all stakeholders. In EDRi’s opinion, this is preferable to unaccountable back-room  discussions, billed as self-regulation or 'voluntary' talks.

 This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content,  please cite my name as the  author, and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten, 2013, Will the EU Act on Notice and Action? in www.iptegrity.com 28 May 2013.  Commercial users - please contact me.

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