Ecommerce directive: EU Commission sneaks out filtering review

The review of the E-commerce Directive asks whether network filtering can be effective and whether there are liability issues for "web 2.0 and cloud computing". Given that it is under the remit of the French Commissioner, Michel Barnier, how are we to read this strange approach to a consultation which specifically does NOT want to hear the citizen perspective?

In the middle of the summer holidays, when few were around to notice it, the European Commision has sneaked out a highly controversial review of the Ecommerce directive. The review is consulting on the use of Internet filtering and monitoring and search engine linking. It appears to have been influenced by the pharmaceutical, luxury goods and copyright industries. And in a move that is sure to inflame the user community, the Commission has specifically ruled out responses from citizens' groups and NGOs.

The Commission considers that

private individuals should only answer as consumers, and it does not give any opportunity to discuss the democratic issues related to filtering and monitoring of the Internet and related issues.

The private individual is given a few rather simplistic questions, which even at first glance indicate that the Commission's own lack of practical experience of e-commerce. I highlight the question on 'how do you pay online' which omits the option of 'PayPal'.

Is there no-one in DG Markt who uses eBay or trades online?

The questions related to filtering and monitoring are all seeking legal opinion and fact, which is of course valid. However, in doing so, they risk alienating large numbers of EU citizens, who do not just worry about whether an online supplier is alternative to the local shop, but are concerned about the possibility of their privacy being breached and the right to access or distribute information being infringed. The lawyers who work as lobbyists for large corporations, do not generally discuss these issues from the citizens' viewpoint.

For example, question 67. Do you think that the prohibition to impose a general obligation to monitor is

challenged by the obligations placed by administrative or legal authorities to service

providers, with the aim of preventing law infringements? If yes, why?

The question is addressed only to ISPs, lawyers and public sector organisations. However, the issues it raises have serious implications for the public interest and for EU citizens' fundamental rights. If I have understood correctly, it wants to know whether ISPs being asked to implement 3-strikes and other forms of sanction could end up in a position where they have to monitor.

And question 60 asks: Do you think that the introduction of technical standards for filtering would

make a useful contribution to combating counterfeiting and piracy, or could it, on

the contrary make matters worse? Technical standards for filtering would take Europe a long way down the road to China (and the UAE, Iran, etc...) Moreover, filtering for whatever reason, entails much more than just technical standards. It requires a set of criteria and the people to compile the lists (black, white or grey or whatever colour you like lists).

Question 68 is about changing the status for hosting and caching. This question has serious ramifactions for the millions of small websites and hosting companies across Europe - and yet, these small businesses appear to be excluded from the entire consultation.

The E-commerce directive review is also asking about notice and takedown procedures - which DG Markt has been secretly consulting on with the industry for some time.

And it asks about search engine issues and linking - which first and foremost tackles an issue that concerns the large media corporations but which also raises concerns for citizens access to information and in particular, for bloggers and small website owners.

DG Markt also incorporates a question about copyright - specifically multi-territory rights - which does not belong in the consultation at all, given that the E-commerce directive does not address copyright.

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Here are the questions on ISP liability. The abbreviations in capital letters are the groups which it wants to hear from on each question. Private individuals are abbreviated as 'PRIV' - you'll see their opinion will only be considered for one question.

Public consultation on the future of electronic commerce in the internal market and

the implementation of the Directive on Electronic commerce (2000/31/EC)

Issue 5: Interpretation of the provisions concerning intermediary liability in the

Directive

Mere conduit, caching and hosting

52. Overall, have you had any difficulties with the interpretation of the provisions

on the liability of the intermediary service providers? If so, which? BUS (ISPs),

PUB SERV, INFOSOC LAW PUBLIC SERVICE

53. Have you had any difficulties with the interpretation of the term "actual

knowledge" in Articles 13(1)(e) and 14(1)(a) with respect to the removal of

problematic information? Are you aware of any situations where this criterion has

proved counter-productive for providers voluntarily making efforts to detect illegal

activities? BUS (ISPs), PUB SERV, INFOSOC LAW PUBLIC SERVICE

54. Have you had any difficulties with the interpretation of the term

"expeditious" in Articles 13(1)(e) and 14(1)(b) with respect to the removal of

problematic information? BUS(ISPs), PUB SERV, INFOSOC LAW PUBLIC

SERVICE

55. Are you aware of any notice and take-down procedures, as mentioned in

Article 14.1(b) of the Directive, being defined by national law? BUS (ISPs), PUB

SERV, PRIV

56. What practical experience do you have regarding the procedures for notice

and take-down? Have they worked correctly? If not, why not, in your view? BUS

(ISPs), INFOSOC LAW PUBLIC SERVICE

57. Do practices other than notice and take down appear to be more effective?

("notice and stay down"13, "notice and notice"14, etc) BUS (ISPs), INFOSOC LAW

PUBLIC SERVICE

58. Are you aware of cases where national authorities or legal bodies have

imposed general monitoring or filtering obligations? BUS(ISPs), INFOSOC LAW

PUBLIC SERVICE

59. From a technical and technological point of view, are you aware of effective

specific filtering methods? Do you think that it is possible to establish specific

filtering? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE

60. Do you think that the introduction of technical standards for filtering would

make a useful contribution to combating counterfeiting and piracy, or could it, on

the contrary make matters worse? BUS(ISPs), INFOSOC LAW PUBLIC SERVICE

61. Are you aware of cooperation systems between interested parties for the

resolution of disputes on liability? BUS (ISPs), INFOSOC LAW PUB SERVICE

62. What is your experience with the liability regimes for hyperlinks in the

Member States? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE

63. What is your experience of the liability regimes for search engines in the

Member States? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE

64. Are you aware of specific problems with the application of the liability regime

for Web 2.0 and "cloud computing"? BUS (ISPs), INFOSOC LAW PUBLIC

SERVICE

No general obligation to monitor

66. The Court of Justice of the European Union recently delivered an important

judgement on the responsibility of intermediary service providers in the Google vs.

LVMH case15. Do you think that the concept of a "merely technical, automatic and

passive nature" of information transmission by search engines or on-line platforms

is sufficiently clear to be interpreted in a homogeneous way? BUS (ISPs), INFOSOC

LAW PUBLIC SERVICE

67. Do you think that the prohibition to impose a general obligation to monitor is

challenged by the obligations placed by administrative or legal authorities to service

providers, with the aim of preventing law infringements? If yes, why? BUS (ISPs),

INFOSOC LAW PUBLIC SERVICE

68. Do you think that the classification of technical activities in the information

society, such as "hosting", "mere conduit" or "caching" is comprehensible, clear

and consistent between Member States? Are you aware of cases where authorities

or stakeholders would categorise differently the same technical activity of an

information society service? BUS(ISPs), PUBLIC SERVICE INFOSOC LAW

69. Do you think that a lack of investment in law enforcement with regard to the

Internet is one reason for the counterfeiting and piracy problem? Please detail your

answer. BUS (ISPs), INFOSOC LAW PUBLIC SERVICE

Issue 2: Questions concerning derogations from Article 3 (Article 3(4) and Annex)

36. In your view, does the purchase and sale of copyright protected works subject

to territorial rights and the territorial distribution of goods protected by industrial

property rights, encourage or impede cross-border trade in information society

services? All

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Ecommerce directive: EU Commission sneaks out filtering review http://www.iptegrity.com 31 August 2010