Aleksandra Kuczerawy
Current policy discourse inward the European Union is steadily shifting from intermediary liability to intermediary responsibility. The long-established regulation prohibiting full general monitoring obligations is currently beingness challenged yesteryear 2 initiatives inward particular, namely the Copyright inward the Digital Single Market Directive together with the proposal on the Regulation preventing the dissemination of terrorist content online. By belongings service providers liable together with requiring wide implementation of censoring measures, this growing tendency toward imposing monitoring obligations may guide hold meaning ramifications for the might of individuals to freely part together with access content online.
No General Monitoring Obligation
The limited liability regime for Internet intermediary services inward the European Union is currently going through major changes. To date, the liability exemptions for Internet intermediary service providers guide hold been governed yesteryear E-Commerce Directive (ECD). The Directive applies horizontally to diverse domains together with to whatever sort of illegal or infringing content.
Under Article xv of the ECD, E.U. Member States may non impose on intermediary service providers a full general obligation to monitor information that they transmit or store. Further, Member States cannot innovate a full general obligation to actively appear for facts or circumstances indicating illegal activity. The prohibition of monitoring obligations (Recital 47) refers alone to monitoring of a full general nature. It does non delineate of piece of occupation concern monitoring obligations inward a specific case; nor does it impact orders issued yesteryear national regime inward delineate amongst national legislation.
The ECD, moreover, does allow Member States to require hosting providers to apply duties of care. Such duties of care, however, should merely move introduced to notice together with foreclose for sure types of illegal activities, foreseen yesteryear national law. The Directive does non specify what just such duties of aid entail. As a result, the boundary betwixt duties of aid together with full general monitoring is non clear.
Per Article 15, Member States are non allowed to innovate obligations that would require intermediary service providers to systematically monitor the information they shop or transmit. This does non hateful that service providers cannot guide hold upwards such activities on their ain initiative. Most of the service providers inward the European Union practise perform for sure voluntary monitoring activities inward companionship to keep a “civilized” surroundings on their platforms. Voluntary monitoring, however, tin assay detrimental. Exercising besides much command could compromise the neutral condition of the intermediary service provider and, inward consequence, deprive them of the prophylactic harbour protection provided yesteryear Article xiv of the ECD. The E.U. intermediary regime does non comprise a provision which protects service providers from liability should their voluntary monitoring assay imperfect (such equally the i offered yesteryear the Section 230(c)(2) of the Communications Decency Act inward the United States). The lack of a Good Samaritan-style protection results inward a for sure grade of prudence on the side of the E.U. service providers when administering the monitoring activities on their platforms.
Current policy discourse inward the European Union is steadily shifting from intermediary liability to intermediary responsibility. The amended Audiovisual Media Services Directive, the Directive on copyright inward the Digital Single Market, together with the proposal for a Regulation on preventing dissemination of terrorist content online, equally good equally recent soft constabulary initiatives, such equally the Code of Conduct on Countering Illegal Hate Speech Online together with the most recent Code of Conduct on Disinformation, are all examples of that trend.
The one-time is understood equally a negligence-based approach, spell the latter emphasizes the involve for proactive measures. The long-established regulation prohibiting full general monitoring obligations is currently beingness challenged yesteryear 2 initiatives inward particular, namely the Copyright inward the Digital Single Market Directive together with the proposal on the Regulation preventing the dissemination of terrorist content online.
Copyright inward the DSM Directive
In mid-February 2019, at the terminate of the so called “trilogue” procedure, the negotiating E.U. institutions reached a amounts to installing upload filters yesteryear the service providers together with systematic monitoring of the entirety of the users’ content. Despite repeated attempts to convince the wide populace that the Copyright inward DSM Directive was non meant to innovate upload filters, several text passed the vote yesteryear the European Parliament on 26 March 2019 together with was ultimately approved yesteryear the Council on xv Apr 2019. Article 17 (formerly Article 13) of the Copyright inward DSM Directive includes a substantial change to the established intermediary liability regime, inward that it makes service providers straight liable for the content uploaded yesteryear their users. To avoid liability, service providers must move into into licensing agreements amongst whatever owners of whatever content they may perchance host. Per Article 17.4b,
if the service provider does non desire to (or is non able to) pay licensing fees, they guide hold to demonstrate they made best efforts to ensure the industrial plant are unavailable “in accordance amongst high manufacture standards of professional person diligence.” Only so may they move able to escape direct liability for the content of their users. The Copyright inward DSM Directive stipulates that the application of Article 17 “shall non Pb to whatever full general monitoring obligation.” Interestingly, the terminal text of the provision no longer refers specifically to Article xv of the ECD. The provision clearly aims to pacify the numerous critics of the Directive. Despite the insistence that Article 17 volition non Pb to full general monitoring obligation, it is hard to imagine inward what other agency service providers tin ensure copyrighted industrial plant are non made available without proper licensing. To effectively recognize infringing content, a technological tool must move used to examine all newly uploaded content on the platform together with comparison it amongst an existing database. This amounts to installing upload filters yesteryear the service providers together with systematic monitoring of the entirety of the users’ content. Despite repeated attempts to convince the wide populace that the Copyright inward DSM Directive was non meant to innovate upload filters, several officials admitted, presently afterward the vote, that the filters are amounts to installing upload filters yesteryear the service providers together with systematic monitoring of the entirety of the users’ content. Despite repeated attempts to convince the wide populace that the Copyright inward DSM Directive was non meant to innovate upload filters, several unavoidable.
Proposal for a Regulation on Preventing Dissemination of Terrorist Content Online
In September 2018, the European Commission issued a proposal for a Regulation on preventing dissemination of terrorist content online. Apart from one-hour content removal orders (Article 4) together with content referrals (Article 5), the proposed regulation provides that service providers should guide hold “proactive measures to protect their services against the dissemination of terrorist content” (Article 6). According to the European Commission’s proposal inward Article 6, service providers are expected to banking firm agree against publicly or privately-held tools containing known terrorist content. They may also piece of occupation “reliable technical tools to put novel terrorist content,” either using those available on the marketplace or those developed yesteryear the service provider. If the competent authorization considers the taken measures insufficient, it may asking that the provider takes “specific additional proactive measures.” If no understanding tin move reached, the competent authorization has the might to impose “specific additional (…) proactive measures.”
Recital (19) of the European Commission’s proposal states that imposing “specific proactive measures should not, inward principle, Pb to the imposition of a full general obligation to monitor,” as prohibited yesteryear Article xv of the ECD. After this optimistic note, the proposal explains that inward low-cal of the “particularly grave risks associated amongst the dissemination of terrorist content,” the decisions adopted on the footing of the Regulation could, inward fact, derogate from Article 15’s prohibition. The derogation would apply to “certain specific, targeted measures, the adoption of which is necessary for overriding populace safety reasons.” It would seem, therefore, that a full general monitoring obligation may really good move the intended outcome of the Regulation, inward contradiction amongst Article 15.
On 17 Apr 2019, the European Parliament adopted its Report on the proposed Regulation. The Parliament Report made meaning changes to the whole proposal together with to Article 6, which no longer mentions “proactive” measures. Instead, Article half dozen straight off states that the service providers “may guide hold specific measures” that should move “effective, targeted together with proportionate.” The amended Article 6.4 provides that competent authorization “may ship a asking for necessary, proportionate together with effective additional specific measures” to hosting providers that guide hold received a substantial number of removal orders. However, the competent authorization “shall non impose a full general monitoring obligation, nor the piece of occupation of automated tools.” The Parliament Report also amended Recital (19) of the proposed Regulation. The novel version of the recital does non comprise the worrying controversy that Article 15’s prohibition could move derogated from due to overriding populace safety reasons.
The changes introduced yesteryear the Parliament Report eliminate the most meaning threats to the Internet freedoms. The issue, however, is non yet resolved. The proposed Regulation volition proceed to proceed through the “trilogue” procedure, where proactive measures may soundless move reintroduced yesteryear the Council of the European Union.
Outlook
According to the Court of Justice of the E.U., equally described inward Scarlet v. SABAM together with SABAM v. Netlog, a requirement to install a filtering arrangement capable of identifying specific types of content, for close all information stored yesteryear the users, applied indiscriminately to all of them, equally a preventive measure, together with for unlimited menses of time, amounts to a full general monitoring obligation. It is hard to imagine how the “best efforts” together with “proactive measures,” equally envisaged yesteryear the Copyright inward DSM Directive together with the Terrorist Content Regulation respectively, would non constitute a full general monitoring obligation. Despite multiple warnings that the proposed measures would undermine the E.U. acquis, policy makers are soundless moving forward. One hence cannot aid but wonder if the times of no full general monitoring obligations are coming to an end. By belongings service providers liable together with requiring wide implementation of censoring measures, this growing tendency toward imposing monitoring obligations may guide hold meaning ramifications for the might of individuals to freely part together with access content online.
Dr. Aleksandra Kuczerawy is a postdoctoral researcher at the Centre for information technology together with IP Law at the KU Leuven, Belgium. She is the writer of Intermediary Liability together with Freedom of Expression inward the EU: From Concepts to Safeguards (Intersentia, 2018). She tin move reached at aleksandra.kuczerawy at kuleuven.be.
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