Take note, platforms! New recommendations from the European Commission on removing unlawful content from internet

The European Commission has published a recommendation[1] designed to assist internet platforms in putting in place more effective measures to combat illegal online content. The recommendation is not binding, but it does give an idea of the policy European legislators are pursuing, namely that of ensuring a more proactive approach from internet hosting service providers.

The recommendation highlights the need to prevent distribution of content related to terrorism, sexual abuse, incitement to hate and infringement of consumer and intellectual property rights. It is not a question of starting from scratch, as most platforms have already adopted voluntary collaboration agreements regarding terrorism,[2] combating illegal incitement to hate[3] and counterfeiting.[4] However, with this new recommendation, the Commission is asking for even more commitment.

The Directive on Electronic Commerce[5] already created a system for removing content based on two well-established and interrelated concepts. The first is the prohibition against requiring intermediaries to supervise illegal content.[6] The second is that those intermediaries will only be held liable when, having effectively been made aware of the illegal content they are hosting, they fail to act promptly to either remove it or prevent access to the content. To this end, effective knowledge requires the right holder to correctly identify the infringing content, because, otherwise, an obligation of control would be imposed. Therefore, in principle, it should be the interested party who duly identifies any infringing content (e.g., by providing a specific url) and who should explain why it should be removed (e.g., trademark infringement). Until that notification, the intermediary is exempt from any liability and is not held liable unless it fails to remove the content diligently. 

Implementation of the Directive on Electronic Commerce gave rise to considerable differences in the so-called “notice and take down” mechanisms (NTDs), and European legislators are concerned about these instruments and their possible impact on the internal market. And this is logical considering that a single service provider might have to design 28 different procedures in order to remove illegal content from their platform.

Thus, with a view to reconciling this fact with case law of the European Court of Justice, the Commission has issued the following recommendations:

1. Identification of the infringing content: Notices should be sufficiently precise and adequately substantiated so as to allow the hosting service provider to take an informed and diligent decision. Notwithstanding this fact, the recommendation recognises that knowledge and awareness of the illegal content can be obtained through means other than notification, although it does not specify how.
2. Possibility of anonymity: Identification of the person complaining about the illegal content should not be compulsory for the removal procedure to be initiated, although the recommendation is that they should be identified as this facilitates the communications process with the complainant.
3. Information obligations: The service provider should inform both the complainant and the owner of the allegedly illegal content of the measures that will be taken.
4. "Counter-notice": The service provider should set up a counter notice procedure enabling the owner of the allegedly illegal content to make their own allegations in this respect. The purpose is to ensure requisite observance of the freedoms of information and expression also recognized in the Directive on Economic Commerce.[7]
5. Possibility of unilateral procedures: The "counter-notice” is not required when the content is clearly illegal and relates to serious criminal offenses involving a threat to the life or safety of persons. In other cases relating to crime prevention, the competent authority should be required to ensure that the service provider does not notify the alleged infringer of the fact that the procedure has been initiated, in the interests of public policy and public security. 
6. Complementariness: The NTD procedures are designed to facilitate settlement of disputes out of court, which goes some way towards obviating the need for users to go through the courts in order to exercise their rights. 
7. Transparency: Services providers are asked to provide details in their policies of their NTD procedures and how they can be implemented. They should also publish detailed reports on use of these procedures.
8. Automation: The Commission recommends use of automated mechanisms that actively search for infringing content, while emphasizing that under no circumstances should a general supervisory requirement be infringed. This recommendation is more controversial, due to the possible cost involved and the possibility that such instruments could end up infringing users' freedoms of expression and information. 

Although these are no more than recommendations, the European Commission warns that it intends to "closely monitor" its implementation by member states and hosting service providers. It plans to do this by requesting the necessary information in order to monitor effective implementation. Based on that information, the European Commission will ultimately decide whether these recommendations should become binding Union law.

We must be prepared for more changes to come.