As its title suggests, the Commission’s public consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy covers a lot of different areas. One of these is the rules for on-line intermediaries: at present networks, caches and hosts that carry third party content. Back in 2012 we responded to a previous Commission consultation on “notice-and-action procedures” pointing out the problems that the current notice-and-takedown regime creates for universities and colleges in particular.
Under the EU e-Commerce Directive once a host receives an allegation that third-party content is unlawful, the host may itself be liable if it does not remove or modify the content and the allegation is later found by a court to be true. The legally obvious course – to take down any material that is the subject of a complaint – causes particular problems for universities and colleges as they also have a legal duty to protect free speech by their members and guests. The UK’s Defamation Act 2013 created a new process whereby hosting providers could have a court make a ruling on the legality of content before the host acquired any liability, however this only applies in the UK and only to claims of defamation.
Since the previous EU consultation didn’t result in an equivalent change to wider intermediary liability law, our response again suggests that this be done for types of material where the host cannot know whether the allegation of illegality is correct. The consultation also raises the idea of “notice-and-staydown” rules, where an intermediary would be required to prevent future re-publication. Various national courts have imposed such duties in the past, but they have been declared invalid by the European Court of Justice as having a disproportionate effect on the rights of both hosting providers and their users. We’ve also pointed out the very limited benefit of such a legal duty if it only covered re-posting of identical material, and the huge uncertainty that would be created if it were required to also apply to “similar” re-postings.