Opening up the E-commerce directive on content liability hangs like the sword of Damocles over the European Commission. But is the situation changed by bringing in a new legal instrument?

A leaked draft of the proposed new Notice and Action directive reveals that the European Commission has ruled out the option of opening up the E-commerce directive and instead has chosen to draft this new, specific legislative instrument to address the problem of Internet copyright infringement. Reading between the lines, it would seem that the Commission is gripped by fear of a reprise of ACTA, with high-pressure copyright industry lobbying and countervailing citizen protests. According to the draft directive, seen by Iptegrity, the proposed EU Notice and Action directive aims to address copyright enforcement by

establishing a process to get content taken down from websites, social media, blogs and forums. But rather than overtly target copyright enforcement, it seeks instead to establish a generic process for web hosting companies that are covered under the existing E-commerce directive, Article 14. The proposed directive aims is to deal with any content that has been subject to challenge on grounds of its legality. That could include copyrighted videos and music, but it could also be content that is alleged to be defamatory or infringing privacy or that offends against anti-racism or anti-terorism laws.

The directive would enable people to send a notice to the hosting company requesting removal of the content, and the hosting company would bound to apply a formal, legally recognised process for contacting the content uploader and taking it down. The directive would apply horizontally across all types of content. Rather than being specific to, for example, copyright or defamation law, it would apply across that law applicable to both. .

The reference to Article 14 of the E-commerce directive clarifies that the Commission's intention is to address the removal of content uploaded onto hosting platforms and not blocking content by network providers. That is actually a helpful limitation of the scope of the proposed directive, and in that context, it is less problematic than it might have been.

However, it is not clear why the Commission does not stick to the traditional language of 'notice and takedown'. The use of the word 'action' was intended to incorporate measures such as blocking payment services or filtering, that do not appear, from what I can see, to be part of this directive.

From what I understand, there has been more than one draft in circulation. The draft seen by Iptegrity includes a transparency provision for hosting companies, and another provision for a counter-notice. In other words, the person who received a notice claiming that their content was to be taken down, would have the right to challenge that notice. There are two positive provisions intended to protect the rights of all parties involved.

However, the proposed Notice and Action directive is problematic in that uses the general term 'alleged illegal content' as a catch-all for a a broad range of vastly different content issues. It lumps together copyright and defamation, with viruses and malware, unfair commercial practices, sale of pharmaceuticals, and child abuse. It makes no distinction between civil infringements and criminal activity, or commercial anti-competitive practices.

One is faced with the ludicrous prospect of a virus-writer being informed of a notice to take down his malicious code. One could also foresee quite a few anti-competitive actions demanded under the pretext of 'unfair commercial practices' or indeed pharmaceutical sales, where one only has to think about the possibilities for Big Pharma to have a go at the herbal medicine suppliers.

Moreover, the Notice and Action directive states 'data protection' infringements, when I think it ought to mean privacy infringements. For example, photographs such as those of the Duchess of Cambridge (the former Kate Middleton) in a private moment with her husband, engage the right to privacy and not data protection.

Of course, it goes without saying that it is problematic to include action against child abuse images under criminal law in the same breath as civil actions such as copyright infringement or defamation.

The proposed directive lacks constraints or penalties for those who mis-use the notice procedure, and hence risks leaving the door wide open to private policing and anti-competitive business practices.

It would seem that the Commission has taken this approach in order to justify a new instrument, and not opening up the E-commerce directive. The problem for the Commission is that whichever legal route it chooses, it will look up and see the sword of Damocles dangling on the string.

See also my previous article on the proposed Notice and Action directive: EU notice & action directive: its on the way

For the story of ACTA and the European Commission, see my forthcoming book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

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 and action: the EU Commission's Damocles moment 11July 2013. Commercial users - please contact me.