European framework for 'notice and take down' procedures
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The European Commission has announced plans to create a European framework for "notice-and-take down" procedures. These are procedures under which internet intermediaries either remove or block access to illegal content, usually after receiving a request to do so.
An effective notice and take down procedure is essential to internet hosts if they are to benefit from the "hosting defence" under Article 14 of the Ecommerce Directive. Under Article 14, a host is not liable for third party information that it stores provided that it does not have actual or constructive knowledge that the information is illegal. If the host acquires such knowledge, then in order to benefit from the defence, the host must act expeditiously to take down the information or block access to it. The defence shields the intermediary from civil and criminal liability, but not from injunctions.
The European Commission recently conducted a wide-ranging public consultation on the Ecommerce Directive, including the hosting defence. Respondents complained that notice and take-down mechanisms differ from one Member State to another and are often unclear.
- Some Member States have introduced specific notice-and-take-down laws, for example in relation to terrorism-related information (the UK), child abuse/pornography (Italy, France, Germany) and infringing content (Finland, Lithuania).
- Some Member States have set a time limit within which intermediaries must take down or block access to illegal information.
- National courts take different approaches when deciding whether an intermediary has "actual knowledge".
The Commission's view is that further work is needed to make notice-and-take-down procedures more coherent across the EU. It hopes that an EU-wide framework will achieve this, creating legal certainty for stakeholders. The Commission plans to hold a consultation to address issues such as:
- How intermediaries should be notified of illegal content
- The information that should be contained in the notice, such as the URL of the offending site
- Whether the provider of alleged illegal content should have a right of reply
- How fast intermediaries should act in relation to illegal content
- Whether companies should be more transparent about their notice-and-take-down procedures.
We will continue to monitor and report to our clients on developments in this area.
Related articles: EU review of Ecommerce Directive