E-commerce directive - EU Commission gives notice of action

Report on European Parliament seminar: 'Self-regulation - should online companies police the Internet'

A sneak preview of the European Commission's plans for the E-commerce directive was given at a European Parliament seminar this week. Although the legislation itself will remain unchanged, the Commission does plan a series of non-legislative initiatives which will address the role of ISPs in taking down content from the Internet, in particular for copyright enforcement. The Commission says that it has no political direction on what it should do, although that is yet to be seen.

The revelation was made by Werner Stengg, Head of Online Services at DG Markt. Herr Stengg is the new man at the Commission who is in charge of the E-commerce directive review, currently underway. His remarks were made at the seminar, Self-regulation - should online companies police the Internet' hosted by by Dutch Liberal MEP Marietje Schaake.

Herr Stengg said that the Commission will present its views on the E-commerce directive on 11 January. He stressed on more than one occasion that the E-commerce directive will not be opened up.

But the Commission does plan a raft of other initiatives around the directive's ISP liability provisions. These are the 'mere conduit' provision which protects ISPs over liability for the content they carry, and rules which prevent governments from asking ISPs to monitor, and which protect web hosting companies from liability for hosted content.

Herr Stengg spoke of "illegal content, including IPR infringement" and said that the Commission will propose a 'notice and action' initiative. It is not clear what kind of 'action' he means, but there is no formal notice and takedown process under current EU law, and a possible interpretation is that it would be a formalisation of a notice and take-down process for online content.

"We will announce an initiative on notice and action based on the directive. One of the main conclusions is that the directive will not be changed Articles linked to the liability regime will stay as they are but we will look into the procedures that implement these principles[.... ]to see if there is any good practice that could be taken as a general guidance on how such a process could be carried out. We are not just talking about economic interests here but very much all the fundamental rights and freedoms that are concerned by this [...]"

Herr Stengg added "We don't have any political guidance that would push us in one direction or the other".

It is not clear how such an intiative would fit into the Commission's overall IPR and copyright enforcement policy. Such an intiative would seem to pre-empt the IPR enforcement directive review which is also due to progress next year.

However, it is interesting that there is no political guidance on this issue. The DG Markt Commissioner is the French Michel Barnier, Sarkozy's plant. What would happen if Herr Stengg wants to recommend an approach which Sarkozy does not agree with? Technically, Commissioner Barnier should allow his officials to do what they perceive as right and should not take instructions from his home government. In practice, does that work?

Thus, Herr Stengg's approach has potential to slide the Commission out of a little technical difficulty. By not proposing to alter the legislation, and by setting up a non-legislative review of subordinate procedures, he hopes to get out of the scrutiny that new legislation requires, and to keep out of this very poisonous snake pit.

He proposes to pull out the snakes one by one, and make them obey rules. The Commission may think it can handle them. The snakes know better.

This report is based on the webcast of the seminar available here.

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