European Commission’s alleged plans to impose monitoring obligations (“duty of care”) on online platforms would undermine the Internet as a platform open to posting and sharing content, argues Jens-Henrik Jeppesen, Representative and Director for European Affairs at the Center for Democracy and Technology (CDT).
The Digital Post: The European Commission’s consultation on the role of online platforms hints at expanding the liability of intermediaries as regards illegal content hosted online. What exactly the Commission has in mind?
Jens-Henrik Jeppesen: We do not know exactly what the Commission has in mind. In its various recent policy statements the Commission has only hinted at the prospect of changing the current rules.
This is the case, both in the Digital Single Market Communication from May 2015, the DSM Platforms Consultation that has just finished (see CDT response here) and in the 9 December Copyright Communication.
In the latter document, the Commission says that it will consider options for amending the IP Enforcement Directive. It also notes that the platforms consultation raises the option of ’take down and stay down’.
Effectively this can only mean introduction of a general monitoring obligation on intermediaries, which is not allowed under the E-Commerce Directive. We want to preserve this protection.
TDP: What might be the general implications of these obligations, were it introduced?
JHJ: As we explain in various of our statements and documents, a monitoring obligation if it were to be introduced, would require intermediaries of all kinds to police, screen and filter for content that might be argued by some to be illegal.
This could be anything from alleged hate speech, defamation, radicalising content, or copyright infringement. It is often a difficult, delicate and highly subjective evaluation to make.
It would undermine the Internet as we know it as a platform open to posting and sharing of blogs, comments, podcasts, pictures and all kinds of material because any hosting platform would have to first ensure that whatever is posted/shared cannot be judged to be illegal.
The incentives for intermediaries would be to be overly restrictive to avoid expensive legal challenges and lawsuits. The consequence would without a doubt be to severely restrict free expression and debate on the Internet.
It would also impose massive costs and risks on start up Internet companies – exactly the type of enterprise European politicians would like to see grow and scale.
TDP: How, then, to ensure “greater responsibility” from online intermediaries without resorting to new legal obligations?
JHJ: First of all, the current rules (the E-Commerce Directive) rightly shield intermediaries from liability – but only if they take action once notified about illegal content on their networks. So, an intermediary cannot simply ignore notification that illegal content has been published on their network or platform.
If it does not act on a notice, it will lose its liability protection. That is already a strong incentive for intermediaries to act swiftly when notified about illegal content. Further, most intermediaries enforce their own terms of service.
Most social networks give users the possibility to flag content and comments that they consider to be illegal or against terms of service (for example, racist or anti-Semitic comments).
The same applies to content that violates copyright. There are also various agreements to ‘follow-the-money’, i.e. make it difficult for websites that systematically offer pirated content on a commercial scale to operate.
There is for example an memorandum of understanding between trademark owners and online trading services to stop trading in counterfeit goods, illegal medicines and the like.
TDP: The Centre for Democracy and Technology has also voiced doubts regarding the way the Commission is using the notion of “online platforms”. Why?
JHJ: As we explain in our platforms consultation response, the platforms definition is so broad that it captures so many types of companies in different industries that it becomes meaningless.
Furthermore, these companies are already subject to consumer rules, competition rules, data protection law etc., no matter whether they operate wholly or partly or not at all online.
It is not clear that it makes sense to create a new category of company to which particular regulation applies. Technology and business models evolve rapidly, and laws should not be drafted for specific technologies or business models.