European Union: Take-Down: New Directive For Actioning Illegal Website Content

Summary and implications

Contrary to indications given last year, the European Commission (EC) now proposes a new directive to cover take-down procedures and action relating to unlawful website content. The Commissioners were set to formally adopt the first draft of the Notice and Action Directive (N&A Directive) on 10 July 2013 together with a non-binding communication on best practices for notice and action procedures.

If the new legislation lowers the risk of legal liability for online content it will be welcomed by many in the online industry, such as website search engines (for example, internet service providers (ISPs) and Google), website hosts and content producers (for example, YouTube or social media sites such as Facebook) and online auction forums (such as eBay). Most would, in any event, welcome harmonisation of the existing fragmented approach and multiplicity of laws. Currently, each EU member state takes a different approach to notice and take-down.

However, if the N&A Directive places more onerous obligations onto online hosts or makes it easier to get allegedly illegal content removed, then major brand owners will be happy.

We summarise below what to expect.

What are notice and action procedures?

For context, under the current legal framework of Directive 2000/31/EC (the E-Commerce Directive), internet companies may be liable for hosting illegal online content if they fail to act expeditiously once they have "actual knowledge" of it. However, each member state has a different approach to the standard of "actual knowledge" and the procedures for "notice and take-down" or "notice and action" (that is, giving internet companies notice of illegal content and for their taking action on it) (N&A procedures). As a consequence, there is no one N&A procedure in the EU's digital market.

This has led to a lack of harmony in the laws in the EU and considerable legal uncertainty. Many complain that it is too hard to stop illegal online activity. Others argue that there is a bias towards taking content down and a lack of transparency in decisions, which is a threat to freedom of speech.

Time for action by the EC?

The EC conducted a public consultation on e-commerce in 2010 and followed that up with a further consultation on N&A procedures in 2012. The EC said at the time that it would not revise the E-Commerce Directive but would merely produce more guidance on how N&A procedures should work. In May however, the EC announced¹ it would propose new legislation on N&A procedures – an initiative welcomed by the European Parliament last month.² The first draft of the N&A Directive has now been circulated internally for internal consultation with a non-binding communication on best practices for N&A procedures. The Commissioners were expected to adopt it formally on 10 July 2013.

What to expect in the new N&A Directive

Although the draft is not yet released, we understand the N&A Directive is likely to contain the following:

• Standardised processes for requests to take down allegedly unlawful content or to take other action (such as blocking content).
• Formal requirements for notices including timeframes. It is anticipated that requests will need to meet certain criteria and be substantiated with evidence. We expect clarification on how "expeditiously" action must be taken by ISPs to avoid liability under the E-Commerce Directive.
• Processes to address wrong notices or wrong take-down. Provisions are expected which limit liability for an intermediary who wrongly takes down content after receiving a notice.
• What will be absent is the following:
• What is meant by "action". Action can include anything from rendering content inaccessible, blocking or temporarily suspending the display of it or of links. A clear definition would give greater certainty to notice-givers and ISPs as to what action is required or sufficient. Also, clarifying whether action on illegal content will enable an intermediary to avoid liability under both civil and criminal laws would be welcome.
• Guidance on how to assess notices. At present, unless ordered by a court to remove content, an intermediary must make its own assessment as to what is illegal. If further guidance is not provided, it will be a missed opportunity to address ISP risks.
• Obligations on internet companies to publish statistics on requests and action. Brand owners and free speech advocates have called for greater transparency and will be disappointed if they do not get it.

Conclusion

An N&A Directive will impact anyone providing or using websites. Although greater unity in the EU laws will be welcome, we will not know if the proposals will be considered positively or not by ISPs, brand owners or free speech advocates until the details are released.

Footnotes

1. In a speech given on 28 May 2013 to the Conference, "The EU Digital Single Market: From rhetoric to reality" by Michel Barnier, the Commissioner for the Internal Market and Services.

2. European Parliament resolution of 4 July 2013 on completing the digital single market (2013/2655(RSP)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.