Web takedowns come under EU scrutiny

The European Commission says it wants to clarify existing rules that govern how and when a rights holder can have copyright-infringing content taken down or blocked, as part of a new e-commerce action plan
Written by David Meyer, Contributor

The European Commission plans to look into the procedures used to take down copyright-infringing and other illegal content from websites or block access to those sites.

European Commission building

The European Commission has said it will try to sort out laws on blocking websites, as it announced an e-commerce plan.

Europe's 12-year-old e-commerce laws already roughly describe when and how these 'notice-and-action' procedures can take place, but a Commission consultation in 2010 showed many people wanted clarification on how those rules should be interpreted.

On Wednesday, as part of an announcement of a wider e-commerce action plan, the Commission said it will try to sort the matter out this year. As part of this, the EU's executive body will hold what it calls a "targeted public consultation".

"In the responses to the public consultation on e-commerce, stakeholders complained that it is not clear how these [takedown] procedures are meant to work. As a result, illegal content stays online for too long, companies face legal uncertainty and the rights of content providers (like individuals who upload content on the internet) are not always respected," the Commission said.


According to the E-Commerce Directive of 2000, ISPs cannot be held liable for what gets sent over their networks. This also applies to web hosts, who are not seen as responsible for what other people put on their servers.

However, if a national court orders it, hosts must take down or block access to any illegal material, once someone has notified them that it is there. Similarly, the directive has been interpreted as allowing national courts and administrations to force ISPs to block access to sites that host such material, as long as they do not make the service providers monitor everything that they transmit or host.

For example, UK courts have begun ordering ISPs to block access to sites that host copyright-infringing or 'pirated' content, or help people to share this material. The same thing has happened in France, Denmark, Italy and Finland.

Sites such as YouTube also get regular takedown requests from copyright holders complaining their products have been unlawfully uploaded for people to freely view.

On Wednesday, the Commission said it will tackle questions about how intermediaries such as ISPs and web hosts should be notified of such content. It also plans to consider how quickly the intermediary should act on the request, and whether a content provider should "have an opportunity to explain why he thinks certain content is not illegal", it said.

The consultation will examine specific points, such as whether the takedown or blocking notice should be based on an IP address, whether notices should be sent electronically, and whether individual companies should be more transparent about their notice-and-action procedures.

E-commerce action

The 'notice-and-action' consultation is only one part of the new e-commerce action plan. Overall, the plan is aimed at "doubling the share of e-commerce in retail sales (currently 3.4 percent) and that of the internet sector in European GDP (currently less than three percent) by 2015", the Commission said.

Illegal content stays online for too long, companies face legal uncertainty and the rights of content providers... are not always respected.
   – European Commission

As part of this, the plan calls for the Commission to introduce new legislation on private copying in 2013. In many countries, it is illegal to copy music from a CD to an iPod, for instance, despite the fact that many if not most iPod owners do this with the CDs they buy.

The UK government has already decided to introduce a limited copyright exception to allow private copying, much to the ire of the music industry.

European copyright law itself is set for an overhaul. Digital agenda commissioner Neelie Kroes has recently become more vocal in her frustration with the current copyright regime, and the Commission said it will review these rules this year.

In addition, it plans to gather opinions on how make card, internet and mobile payments easier across the EU. This consultation, scheduled for the first half of 2012, is meant eventually to boost online shopping in the single market.

To back this up, the Commission said it intends to "encourage the development of transparent cross-border, price- and quality-comparison sites through dialogue with information intermediaries".

Security for e-commerce is also covered, and 2012 should see the Commission propose a European cybersecurity strategy. Part of this will be the establishment of a European Cybercrime Centre by 2013, along with a cloud strategy for the EU.

On the infrastructure side, new regulations are in the pipeline for internet access pricing, in a bid to stimulate investment in fibre networks. Kroes's team launched a consultation on this matter in October. Clarification is also coming for the 2009 state aid guidelines for high-speed broadband networks.

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