November 23, 2010 | By Gwen Hinze

EFF Calls on European Commission to Protect Internet Users’ Rights by Requiring Court Order Before ISP Takedowns

To provide greater protection for Internet users’ freedom of expression and privacy rights, EFF recommended that the European Commission (EC) should preserve limitations on liability for Internet intermediaries and clarify that Internet intermediaries should not be considered to have “actual knowledge” requiring them to takedown content unless they have received a court order or notification in comments filed recently as part of the EC's long-awaited public consultation on the workability of the 2000 EU eCommerce Directive.

The eCommerce Directive, which regulates a broad swath of Internet activity in the EU, includes "safe harbour" framework principles that limit legal liability for the content of data transmitted or stored by Internet intermediaries who act as mere conduits, caches, or hosts. In our filing, EFF asked the Commission to confirm the application of the safe harbour principles to search engines, user-generated content platforms, auction websites, content aggregators, cloud computing, and other Web 2.0 intermediaries, to provide greater certainty for both intermediaries and Internet users.

We also asked the Commission to uphold an important principle enshrined in the eCommerce Directive -- the prohibition against imposing a general obligation on Internet intermediaries to monitor their networks and platforms. Article 15 of the eCommerce Directive provides that Internet intermediaries do not have to look for evidence of potentially infringing content on their networks to get the benefit of the limitation on liability. This principle is necessary to protect citizens’ fundamental right to privacy, which underpins the rights of freedom of expression and association. In recognition of the central importance of this principle for protecting citizens’ rights, the Internet intermediary legal frameworks adopted in several countries since around 2000 have included a similar provision. (In the U.S. it’s in section 512(m) of the Copyright Act).

IP rightsholders have tried to undermine this bedrock principle in recent years through various efforts aimed at imposing obligations on Internet intermediaries to filter content for potential copyright-infringing material. Europe is at the forefront of this battle. (As we noted in our submission, the question of whether a court order requiring an ISP to employ copyright filtering technology violates the “no general obligation to monitor” requirement is currently pending before the European Court of Justice in the SABAM v. Scarlet (Tiscali) case). To address this, EFF asked the Commission to clarify limits on when injunctions can be used by national courts to force ISPs to filter or monitor Internet communications. EFF's comments also explained why Internet filtering is over-broad and ineffective from the technical perspective.

Finally, we submitted evidence to the Commission about how the US DMCA’s notice and takedown regime has helped promote freedom of expression by providing legal certainty for intermediaries, but has also led to many improper removals of user generated content in the U.S. – despite the important and valuable procedural protections provided by the DMCA such as the counternotice and put-back regime and the ability to bring a lawsuit to seek redress for wrongful takedowns. To provide Internet users with a greater level of protection for freedom of expression, we recommended that the Commission clarify that an Internet intermediary that hosts content should only be required to take down content upon receipt of a court order directing it to do so.

These clarifications to the application of the EU eCommerce Directive are critical because the legal and policy frameworks that regulate Internet intermediaries have a direct bearing on citizens’ fundamental rights. As we and other public interest organizations noted in our respective submissions (see submissions from Article 19, EDRi and BEUC), uncertainty about the scope of the safe harbor provisions in the EU puts pressure on Internet intermediaries to monitor the content of communications on their platforms, which, in turn, is likely to cause harm to privacy and free expression. Legal uncertainty has also impeded technological innovation -- contrary to the EC's stated goal in adopting the eCommerce Directive. Stay tuned for our thoughts on the EC's response to this important public consultation.

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