Some months ago I wrote a summary of where the debate had got to in Europe on the question of new obligations for online platforms and other internet intermediaries regarding the availability of unlawful content online. Today, this article provides an update, in advance of a highly anticipated vote in the European Parliament in September 2018 concerning EU copyright reform.
It is worth giving a brief recap of the current regime in Europe. Articles 12-14 of the E-commerce Directive (ECD) contain protection from liability for those acting as “mere conduits”, and those who are caching, or performing hosting services. The most relevant for the present debate is the Article 14 hosting defense. This shields information society service providers (such as ISPs, platforms, social media, etc) from liability for content stored at the request of a user of the service as long as they do not have actual knowledge of the illegal activity or information and are not aware of facts and circumstances from which the illegal activity or information is apparent. If the provider obtains such knowledge or awareness they are still protected as long as they act “expeditiously” to remove or disable access to the information (notice and take down).
This goes hand in hand with Article 15 ECD, which prohibits general obligations being imposed on providers to monitor the information transmitted, stored, or actively to seek facts or circumstances indicating illegal activity.
The hosting defence covers not just technical storage providers, but can also apply to sophisticated platforms doing more than mere storage.
Is Europe moving away from the current regime?
There are two aspects to look at: case law, and current EU legislative proposals and policy documents.
1. Case law
In my last piece I referred to two European Court of Human Rights cases, Delfi and MTE and Index.hu v Hungary, in which portals had been found liable in respect of reader comments posted to articles. I pointed out that the correctness of the (questionable) Estonian and Hungarian domestic rulings that no intermediary protection applied to the portals was not under review by the supranational ECtHR, and so they were not necessarily indicative of a wider continental trend towards eroding intermediary protection.
I also referred to two judgments issued by the Northern Ireland High Court (CG v Facebook Ireland Ltd and J20 v Facebook Ireland Ltd), various aspects of which were subsequently overturned by the Court of Appeal in both cases. The NICA’s findings on appeal somewhat reduced some of the concerns platforms would have been feeling based on the first instance findings, at least as regards the question of when “actual knowledge” accrues to a platform.
A question which remains unanswered is the extent to which platforms can be ordered to prevent the reappearance of content previously removed. Since the last piece, there has been a new reference to the Court of Justice of the European Union (CJEU) by the Austrian Supreme Court, on this question of ‘notice and stay down’ (Glawischnig-Piesczek Case C-18/18). In that case, an Austrian politician obtained an order obliging Facebook not only to remove certain defamatory content but also to delete any future material bearing comments that were identical to the original wording, or if the comments were similar in meaning and Facebook had actual knowledge of these comments. On appeal, the Supreme Court pointed out that a broad injunction including statements differing from the original could conflict with the prohibition against imposing a general monitoring obligation on intermediaries (Art. 15 ECD).
The Supreme Court has therefore asked the CJEU whether Article 15 ECD precludes an order requiring a hosting provider found to have failed to expeditiously remove illegal information not only to remove the specific information but also other information that is not identical in wording, but similar in meaning; and whether that differs once the host provider has actual knowledge of the information. Intermediaries will be watching for the next development in this case for two reasons. First, because of the potential impact on the permissible width of injunctions that could be ordered against them in terms of the nature of the content which is the subject matter of the order. But also second, because the Court has in addition referred questions about the permissible territorial scope of such an order (in the case at hand, should it be global or limited to Austria).
Most recently, on August 8th 2018, the CJEU issued a ruling in the SNB-React case (C-521/17). The case concerned the liability of providers of IP address rental and registration service, but the Court made more general comments about the application of the protections from liability in the ECD. The Court recapped that the limitations of liability for mere conduit, caching and hosting services can only apply where the activity is of a mere technical, automatic and passive nature, which implies that that service provider has neither knowledge of nor control over the information which is transmitted or stored. So far, nothing new.
In the Google France and L’Oreal v eBay cases, the Court ruled that playing an active role of such a kind as to give a service provider knowledge of, or control over the content in question would take a service provider outside the limitation of liability. However, some commentators have drawn attention to wording in the SNB-React judgment which is arguably not consistent with these earlier judgments. In particular, the CJEU rather inaccurately paraphrased the ‘active role’ from L’Oreal as “allowing” users to optimise online sales activity, rather than “providing assistance” as it was put in L’Oreal. Further, the ambiguous nature of some of the CJEU’s wording in its answer to the second question referred has led some to question if the CJEU was deliberately decoupling ‘knowledge /control’ from ‘active role’ (albeit, the CJEU was still requiring both before the exemption from liability would be disapplied). Given this would be a departure from previous rulings, and that the CJEU chose not to have the benefit of an Advocate General’s Opinion in this case, it is perhaps more likely to be merely the result of some loose language.
2. Proposed Copyright Directive
By way of brief recap, in September 2016 the Commission published draft text for a proposed new Copyright Directive. Draft Article 13 would oblige service providers that store and provide access to large amounts of works uploaded by users to: (1) take measures to ensure the functioning of agreements concluded with rights holders for the use of their works, and (2) prevent the availability on their services of works identified by rights holders through cooperation with the service providers. An example given of such measures is effective content recognition technology.
Both sides of the debate (rights holder vs intermediary) continue to be vociferous in their commentary. Many observers have also pointed out the lack of clarity around how this regime (specifically, part (2) above) is supposed to fit with the prohibition on monitoring in Art. 15 ECD, and other EU legal instruments.
What’s the state of play right now?
Many months later than originally envisaged, the European Parliament held a vote on July 5th 2018 regarding the next steps for the proposed Directive. In a strategically important move, the Parliament voted against providing a mandate for three-way (“trilogue”) negotiations to begin on the draft Directive, on the basis of the Report adopted by the lead Legal Affairs Committee (JURI) in June 2018. As a result, the Parliament will reconsider the JURI Report and amendments at the next plenary session (September 10th – 13th 2018) and Members of Parliament will also have the possibility to table new amendments.
This means that the beginning of the trilogue negotiations will be delayed, making it less likely that consensus will be reached on the draft Directive before the end of the mandate of the current Juncker Commission, which ends in 2019. This delay in the decision-making process means that the discussions on copyright may be even more influenced by the forthcoming European Parliament elections in May 2019. It may also mean that crucial ‘trilogue’ negotiations could take place in a post-Brexit scenario.
Watch this space for an update after the September session.
Commission Recommendation on Measures to Effectively Tackle Illegal Content Online
The publication on September 28th 2017 by the Commission of a Communication about tackling illegal content online generated plenty of controversy. The thrust of the Communication was apparent from its sub-title: “Towards an enhanced responsibility of online platforms“. The Communication laid down a set of guidelines and principles for online platforms to “step up the fight against illegal content online”. From an intermediary perspective, there were concerns over, for example, over-reliance on so-called trusted flaggers; whether sufficient heed was being paid either to variation between laws of different EU countries about what content is illegal or to context; and proactive measures by online platforms (including automated filtering technology) in the context of the Article 15 prohibition on general monitoring duties.
The Communication provided guidance and recognised it did not change the legal framework or contain legally binding rules. However, it was described as a first step.
In March 2018, the second step was taken, when the Commission issued a Recommendation on Measures to Effectively Tackle Illegal Content Online. This largely followed the Communication, apart from certain additional provisions regarding terrorist content (where stronger measures apply). This includes assessment and, where appropriate, removal within one hour of receiving notification from competent national authorities or Europol.
The Communication set up the possibility of legislative action in this area. Consistent with this, the intention is to monitor the Recommendation within three months as regards terrorist content and after six months as regards other illegal content. It has been reported that a proposal for legislation focussing on terror content could be coming out of the Commission shortly.
This time last year, the combination of the Commission’s September 2017 Communication and the proposed Article 13 of the draft Copyright Directive led some to conclude that Europe was indeed moving away from protecting internet intermediaries. Although the Communication has been backed up by the March 2018 Commission Recommendation (with its focus on terrorist content), whether Article 13 is ever enacted and in what form is still to be decided. Meanwhile, we await answers from the CJEU regarding the permissible subject-matter breadth and territorial width of injunctions made against intermediaries, and will keep an eye out for legislative action from the Commission following from its Recommendation earlier this year.