New EU Commission Guidelines On Illegal Content Online Clarify Liability For Online Platforms

The European Commission today issued guidelines for removing illegal content online, largely following the lines of existing rules and guidance, but hinting at a possible future move to harmonise practices in this area. Technology companies breathed in relief as the communication did not appear to reduce their protection against liability for content carried on their networks and devices, though it did provide extensive clarification on the liability exemption.

The 20-page guidelines, entitled, Communication on Tackling Illegal Content Online – Towards an enhanced responsibility of online platforms, are available here.

The title suggests movement toward greater responsibility among online platforms. The Commission said the guidelines are more focused on hate speech, violence and terrorism, though there are some references to intellectual property rights.

The Commission clarified rules for liability of online platforms.

It also encouraged platforms to take advantage of latest technologies to fight against illegal content, for instance suggesting to borrow from the copyright field, where it said “automatic content recognition has proven an effective tool for several years.”

In another reference to IP rights, it noted the economic harm that can pile up when there is a delay in removing infringing content. “In cases where economic damage is at stake due to infringing intellectual property right, the potential economic damage arising from such an infringement may be closely related to the speed of its removal,” it said.

The document also suggests the possibility of harmonising EU practices on removing illegal content.

“A harmonised and coherent approach to removing illegal content does not exist at present in the EU,” it states. “Indeed, different approaches exist in the EU depending on Member States, content category, or type of online platform. A more aligned approach would make the fight against illegal content more effective. It would also benefit the development of the Digital Single Market and reduce the cost of compliance with a multitude of rules for online platforms, including for new entrants.”

It says at the end that the Commission will continue working on this until May 2018, and could result in legislative measures.

The document states its purpose as:

“This Communication lays down a set of guidelines and principles for online platforms to step up the fight against illegal content online in cooperation with national authorities, Member States and other relevant stakeholders. It aims to facilitate and intensify the implementation of good practices for preventing, detecting, removing and disabling access to illegal content so as to ensure the effective removal of illegal content, increased transparency and the protection of fundamental rights online. It also aims to provide clarifications to platforms on their liability when they take proactive steps to detect, remove or disable access to illegal content (the so-called “Good Samaritan” actions).”

A Commission press release said the communication is focused on hate speech, violence and terrorism:

“Today, the Commission presents guidelines and principles to increase the proactive prevention, detection and removal of illegal content inciting hatred, violence and terrorism online. The increasing availability and spreading of terrorist material and content that incites violence and hatred online is a serious threat to the security and safety of EU citizens.

As a first step to effectively fight illegal content online, the Commission is proposing common tools to swiftly and proactively detect, remove and prevent the reappearance of such content:

• detection and notification;
• effective removal;
• prevention of reappearance.

The Commission expects online platforms to take swift action over the coming months, in particular in the area of terrorism and illegal hate speech – which is already illegal under EU law, both online and offline.”

As to the way forward, the document said:

“The letter of intent of 13 September 2017 by the President of the European Commission, addressed to the President of the European Parliament and the President of the Council of the European Union, in order to ensure an area of Justice and Fundamental Rights based on mutual trust announced further measures to ensure the swift and proactive detection and removal of illegal content inciting hatred, violence and terrorism. This Communication constitutes a first element of such measures. The Commission expects online platforms to take swift action over the coming months, including in the context of relevant dialogues, in particular in the area of terrorism and illegal hate speech. The Commission will continue exchanges and dialogues with online platforms and other relevant stakeholders. It will monitor progress and assess whether additional measures are needed, in order to ensure the swift and proactive detection and removal of illegal content online, including possible legislative measures to complement the existing regulatory framework. This work will be completed by May 2018.”

Tech Industry Response

The Computer & Communications Industry Association issued a statement today praising the communication. “CCIA has advocated for a long time for the introduction of well-thought-out Notice and Action guidelines, and this Communication is a welcome initiative for a more aligned approach on the removal of infringing content across the European Union,” it said. “The ‘Good Samaritan’ provision, in particular, is a promising step in the effort to tackle infringing content online. Such clarification will help further strengthen the digital sector’s longstanding engagement in this fight.”

 

Image Credits: Flickr – Gynlowe