Iptegrity understands that there is a draft directive on notice and action in existence. It will affect anyone providing or using web hosting facililities, search engines and social media. It is currently making its way around the inter-stitial processes in the European Commission. That means it is being passed around for comment to the different units that have an interest in it. From what I understand, the draft directive is
an attempt to standardise the process for take-down requests, and that it also extends the concept of ‘take-down’ to include other types of actions (presumably blocking of content or payment facilities although this is not clear at this stage).
There is a very real problem with take-down requests as things currently stand. Take-down requests are when someone asks a hosting provider, such as YouTube, or an ISP, to remove content that has been uploaded onto a web server. They are typically used by rights-holders for removal of copyrighted material, and for the removal of other content such as alleged libel.
Unlike the US, where the Digital Millenium copyright Act (DMCA) sets out very clearly what must be done by claimants and recipients of take-down requests, there is no formal take-down procedure spelled out under European law. And the establishment of a European-style DMCA has been resisted in the past.
However, the situation is now that European take-down requests are de facto governed by the DMCA, because European-based organisations are sending their take-down requests to the Us headquarters of companies such as Google and FaceBook, and using the DMCA as their justification. Likewise, the Internet companies are using the DMCA as their guideline for how to manage such requests.
Requests to domestic hosts in EU member states are dealt with on an individual basis, under national law, and sometimes not even that – they are decided by the person who happens to receive the request.
In both cases, it can be argued that take-downs in Europe are subject to private enforcement. This creates a chaotic and inconsistent situation, with consequent lack of certainty for Internet service providers and content companies.
Hence, a directive could actually be the best way to calm the chaos.
But it depends what’s in it. From what I understand, the Commission’s draft directive is lacking in substance on certain points, and it risks increasing the possibilities for private law enforcement.
The issues that it should be addressing, but which may be missing are:
- making a distinction between civil and criminal law. This is important because some content – for example, content that infringes copyright, or is defamatory – is subject to civil law; whereas other content, such as child abuse images, is subject to criminal law.
- proper guidance for providers, who should not be left to take the decision about what is legal and illegal. Civil law take-downs should be determined by a court order, not by an employee of the host or ISP. In some EU member states, such as Spain, this will be determined by the Constitution.
- a transparency requirement on hosting and Internet service providers who should be required by law to publish reports on takedowns received and acted on.
- a definition of ‘action’ in this context. We may assume that it means blocking of content or payment facilities, rendering invisible, etc, but the directive really needs to be clear as to what is intended. Otherwise, we will have the chaotic situation where different methods are used by different providers at their own discretion.
In the context of the current environment, a European Commission initiative to regulate take-down requests may be welcomed.
However, if it fails to address these critical points, then it risks increasing the uncertainty for providers, and of course, for users. Currently, under the de facto US system, providers are on some very grey legal ground. If there is an EU directive, then they will claim that their actions are legitimate.
Users want the commission to get the balance right between provider certainty and user’s rights to freedom of expression. They need assurance that the law will not support their content being arbitrarily judged and thrown out by private employees operating under a shaky piece of law.
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, Notice & action directive: how will the EU balance users’ rights?, in iptegrity.com, 13 June 2013. Commercial users - please contact me.