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Society and innovations
Journal home page:
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The notice and action procedures in the eu and its role in
internet-related disputes
Ibrokhim SAIDOV
1
Tashkent State University of Law
ARTICLE INFO
ABSTRACT
Article history:
Received June 2022
Received in revised form
20 June 2022
Accepted 25 July 2022
Available online
15 August 2022
Today Internet has been serving not only to exchange
information, but it is a place of offering different services.
Hosting service providers can be categorized as one type of
online intermediaries, which provide a huge amount of
information through their websites. However, they do not know
which information is illegal until someone notifies them about
illegal content on their website. In another word, hosting
service providers should have “actual knowledge” to take action
against illegal content. If they do not have actual knowledge,
they should not be liable for illegal content, which they host.
This article explains how notice and action procedure works
in the EU and shows some main issues of its legal framework. In
first section, it analyzes the different ways of interpretation of
“actual knowledge” and its horizontal application to all illegal
contents. Then it discusses how fast illegal contents should be
removed or disabled regarding with different types of illegal
contents. Finally, it recommends some future reforms to EU
legislation in order to make this procedure more transparent
and fair.
2181-
1415/©
2022 in Science LLC.
https://doi.org/10.47689/2181-1415-vol3-iss7/S-pp122-129
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
notice and action,
actual knowledge,
hosting service providers,
illegal content,
counter notification.
Yevropa ittifoqidagi ogohlantirish va harakat tartibi
hamda internet bilan ishlashda uning
o‘
rni
ANNOTATSIYA
Kalit so‘zlar
:
xabar va harakat,
haqiqiy bilim, hosting
xizmati provayderlari,
noqonuniy kontent,
qarshi bildirishnoma.
Bugungi kunda internet nafaqat ma
’
lumot almashish uchun
xizmat qilmoqda, balki u turli xil xizmatlarni taklif qilish
vazifasini ham bajarmoqda. Hosting xizmati provayderlarini
o‘
z
veb-saytlari orqali katta hajmdagi ma
’
lumotlarni taqdim etuvchi
onlayn vositachilarning bir turi sifatida tasniflash mumkin.
1
Lecturer at Tashkent State University of Law.
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Biroq kimdir
o‘
z veb-saytidagi noqonuniy kontent haqida xabar
bermaguncha, ular qaysi ma
’
lumotlar noqonuniy ekanligini
bilishmaydi. Boshqacha qilib aytganda, hosting xizmati
provayderlari noqonuniy kontentga qarshi choralar k
o‘
rish
uchun "haqiqiy bilim”ga ega bo‘
lishi kerak. Agar ular haqiqiy
bilimga ega b
o‘
lmasa, ular
o‘
zlari joylashtirgan noqonuniy
kontent uchun javobgar b
o‘
lmasligi kerak.
Ushbu maqola Yevropa Ittifoqida bildirishnoma va harakat
tartibi qanday ishlashini tushuntiradi va uning huquqiy
bazasining ba
’
zi asosiy masalalarini k
o‘
rsatadi. Birinchi
b
o‘limda “haqiqiy bilim”ni talqin qilishning turli usu
llari va
uning barcha noqonuniy mazmunga nisbatan gorizontal
q
o‘
llanilishi tahlil qilinadi. Bundan tashqari, maqolada turli
xildagi noqonuniy tarkiblarga nisbatan noqonuniy kontentni
qanchalik tez olib tashlash yoki
o‘
chirish kerakligi muhokama
qilinadi. Nihoyat, ushbu protsedurani yanada shaffof va adolatli
olib borish uchun Yevropa Ittifoqi qonunchiligiga kelajakdagi
ba
’
zi islohotlar tavsiya qilinadi.
Регламент европейского союза об уведомлениях и
действиях и его роль в интернете
АННОТАЦИЯ
Ключевые слова:
сообщение и действие,
достоверное знание,
хостинг
-
провайдеры,
нелегальный контент,
встречное уведомление
Сегодня Интернет служит не только для обмена
информацией, но и для предложения различных услуг.
Хостинг
-
провайдеров можно отнести к типу онлайн
-
посредников, которые предоставляют большие объемы
данных через свои веб
-
сайты. Но пока кто
-
то не сообщит о
незаконном содержании на своем веб
-
сайте, он не узнает,
какая информация является незаконной. Другими
словами,
поставщики услуг хостинга должны иметь «фактические
знания», чтобы принимать меры против незаконного
контента. Если у них нет фактических знаний, они не
должны нести ответственность за незаконный контент,
который они размещают.
В этой статье объясняется, как работает процедура
уведомления и действия в ЕС, и освещаются некоторые
ключевые вопросы его правовой базы. В первом разделе
анализируются
различные
способы
интерпретации
«истинных знаний» и их горизонтальное применение ко
всему незаконному контенту. Кроме того, в статье
обсуждаются способы быстрого удаления или удаления
нелегального контента в сравнении с различными типами
нелегального контента. Наконец, рекомендуется провести
некоторые будущие реформы законодательства ЕС, чтобы
сделать эту процедуру более прозрачной и справедливой.
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INTRODUCTION
Today Internet has been serving not only to exchange information, but it is a place
of offering different services. Hosting service providers can be categorized as one type of
online intermediaries which provide a huge amount of information through their
websites. However, they do not know which information is illegal until someone notifies
them about illegal content on their website. In another word hosting service providers
should have “actual knowledge” to take action against illegal content. If they do
not have
actual knowledge, they should not be liable for illegal content which they host. This
mechanism is called notice and action procedures and its legal framework was
established in E-Commerce Directive. Although this Directive does not cover all the
aspects of notice and action procedure, it is considered as cornerstone legislation in the
EU. In general, this article explains how notice and action procedure works in the EU and
shows some main issues of its legal framework. In first section it analyzes the different
ways of interpretation of “actual knowledge” and its horizontal application to all illegal
contents. Then it discusses how fast illegal contents should be removed or disabled
regarding with different types of illegal contents. Finally it recommends some future
reforms to EU legislation in order to make this procedure more transparent and fair.
Current notice and action procedures in Europe
1.1.
The interpretation of “actual knowledge” and its application within
different illegal contents.
The cornerstone legislation of notice and action procedures are established in the
art 14 of Electronic Commerce Directive (E-Commerce Directive) which provides three
core factors for the determination of hosting service providers
’
liability. They are “actu
al
knowledge”, “actions (remove or disable)” and manners (expeditiously)”. According to
the meaning of the art 14 of Electronic Commerce Directive, these three factors are
general exceptions or “safe harbours” which protect internet service providers from
liability of taking action against illegal content. However, these exceptions are not well
clarified and create legal uncertainties in identifying responsibilities of ISPs. Firstly, to
take action against illegal content, hosting service providers should h
ave “actual
knowledge” and “awareness” of illegal activity. Although Directive does not use the term
of “notifying or notice”, it is acknowledged that “actual knowledge” can be obtained by
notification. This notification is usually required to be in precise and sufficient form
which allows hosting service providers to be aware of alleged content. However, in
practice due to the lack of specific requirements of Directive, it is not always easy to
assess the legitimacy of “actual knowledge”.
To prevent uncertainties some online
intermediaries create voluntary requirements for notice and action procedures.
However, those requirements are not user-friendly which require sending a notification
by post or fax. For instance, VeRO (Verified right owner) filter program which has
developed by eBay asks to send notification by fax. This kind of mechanism puts much
obstacle for right holders in order to fight against illegal content. If notice and take-down
procedures are much user-friendly, it would minimize the possibility of avoidance of
responsibility of internet service providers. This opinion should be as a specific
requirement of E-Commerce Directive.
As discussed above due to the lack of specific requirements, the liability of hosting
service providers remains con
troversial. Even simple notification or “constructive
knowledge” may cause liability. In order to avoid from liability hosting service providers
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usually remove contents even without assessing its legitimacy. Sometimes they may
remove legal contents. Because hosting providers are technical intermediaries and it is
not easy for them to handle and assess complex legal matters. Sometimes even lawyers
struggle to identify the infringement of copyright or trademark related disputes. It is
argued that simple notification like a massage by anydiv is not sufficient to obtain
“actual knowledge. It places burden of assessing the quality of notification upon the
providers’ responsibility and compels providers to takedown any content in order avoid
from being sued. Suggested solution to this conflict could be the adoption of modified
notice and action procedures combined with counter-notice option. However, this
procedure should be implemented to legal provisions and provide agreed European
template in order to reduce uncertainties and bureaucratic procedures of different
voluntary approaches among Member States.
Another main problem of E-Commerce directive is that it does not explain what
“actual knowledge” is and how it can be obtained. Some civil organizations claim that
“actual knowledge” should obtain through a court order because of the concerns of
fundamental right of freedom of expression and information. While some ISPs and right
holders argue that “actual knowledge” should be obtained through notice and action
procedures. However, others believe that intermediaries can obtain knowledge even in
absence of notice by their general awareness. For instance, identifying possible existence
of illegal information on their sites can be constituted as “actual knowledge”. By contrast,
obtaining “actual knowledge” by general awareness requires a general monitoring
obligation which is prohibited under the article 15 of the Directive.
Moreover there is not certain definition of “actual knowledge” among Member
States of EU. For instance, Germany use the term of “knowledge” instead of “actual
knowledge”. Portuguese legislation refers to knowledge of “manifestly illegal activity”
rather than using the term of “actual knowledge”.
1.2.
The difference between “actual knowledge” and “manifestly illegal
content” and their application to illegal contents
The definition of “manifestly illegal content” is not same as “actual knowledge”
because former should be obvious to any-non-lawyer without any further investigation
while latter requires specific investigation. For instance, child pornography and
terrorism related contents are manifestly illegal and should be removed expeditiously
while copyright and trademark infringements should not be considered “manifestly
illegal” because they require further investigation before taking any action. So there is a
differentiated approach to the interpretation of “actual knowledge” among Member
States which depends on the type of illegal activity. For instance, in France all racist and
pornographic contents could be considered “manifestly illegal” and can lead to “actual
knowledge” without notice and action procedures. So Member S
tates have different
treatments to different types of content. It is obvious that horizontal application of
“actual knowledge” is not effective to identify liability of hosting service providers.
Another issue relates to voluntary actions of ISPs to obtai
n “actual knowledge”.
Courts of some Member States (Hamburg regional court) confirmed that a flagging
system which has implemented voluntarily by ISP can be considered actual knowledge of
illegal content. The court of the European Union confirmed this approach in the case of
L’Oreal and others v eBay, which constructive knowledge like red flag can be considered
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as actual knowledge and in this situation ISPs cannot benefit from safe harbors of
E-Commerce Directive.
2. Action against illegal content
2.1. The
definition of “expeditiously” regarding the categories of illegal content.
According to the E-Commerce Directive, ones hosting service providers being
notified of illegal content, it is required to act “expeditiously” to remove or disable access
to the illegal information. However, the current legislation lacks to give clear definition of
“expeditiously”.
So there is an uncertainty that how fast internet service providers should
act and does it apply horizontally to all illegal activities? To answer this question it is
recommended that to investigate the nature of illegal content. For instance, child
pornography and terrorism related contents are specific types of contents which have
overriding public interest and they require immediate action while intellectual property
rights and defamation contents require further investigation before taking down any
action. The former is undoubtedly illegal which has imminent threat to society, the latter
requires further investigation such as to obtain the owner of the content, whether a
copyright exception applies or not. Treating both in the same way without assessing the
validity of notice may affect the fundamental rights of freedom of speech and expression.
Moreover, the speed of “expeditious” for one specific category may not be
sufficient for another. For instance, taking down of illegal content within 6 hours may be
sufficient for child abuse content, but it is not considered very fast for the live-streaming
of sports events. One experiment indicates that because of no specific timeframe
requirements it is difficult to take action expeditiously against child pornography. For
instance, the average time of taking down child abuse images is much longer than other
contents which have taken several weeks even a month.
Due to the lack of clarification of the meaning of “expeditiously” in E
-Commerce
Directive, some Member States have established specific time frames in their national
legislation. For instance, in Hungary ISPs have to act within 12 hours for the intellectual
property related contents while in Spain it takes 72 hours. Surprisingly, Irish copyright
act uses the word of “as soon as practicable time rather than “expeditiously”. As author’s
opinion providing such kind of term to legislation gives some flexibility to intermediaries
to make further investigation before taking down information from websites.
Finally, it is recommended that there should be common timeframes among EU
Members in order to avoid uncertainties of different interpretations of the meaning of
“expeditiously”. One suggestion has been given as “a four
-
step approach”
which would be
deemed a solution for the concern of undue delay. According to this suggestion author
gave attention to divide the timeframe into three 24 hours in order to ensure parties that
action has been taken without undue delay.
2.2. The definition o
f “remove or disable access” regarding the categories of
illegal content.
Another problem of E-Commerce Directive is that it does not provide explanation
of removing or disabling access to illegal content. In other word intermediaries do not
know what the
difference between “removing or disabling” is. Because of this issue most
hosting service providers remove the illegal content without assessing its legitimacy.
This approach has been widespread among EU Member states. Comparing with US most
EU based intermediaries prefer to remove items first without even asking further
information. According to the Oxford research group two experiments have been
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performed onto the UK and US websites to compare how fast illegal content is removed
from the websites. UK based website removed the material expeditiously, while US based
website investigated further information and the material remained until the result of
investigation. It is believed that US legislation namely Digital Millennium Copyright Act
gives more opportunity to intermediaries by requiring specific requirements before
taking down any copyright infringement. This also can be seen in the leading defamatory
case of Zeran v. AOL, which a simple notice does not put any liability to ISP under the
s230 of the Communications Decency Act 1996. However, in EU giving merely notice can
be an effective method to remove defamatory material from the website.
Furthermore, in EU there is not any distinction between civil and criminal illegal
contents. It is known that some illegal contents such as child pornography and terrorism
related contents require criminal investigation from law enforcement authorities before
taking any actions. Removing permanently this type of contents may put some obstacles
to find criminals and imposing penalties. In order to avoid from misunderstandings there
should be some clear conditions for the removal of criminal related contents. It is
recommended that hosting service providers should disable the criminal material in the
first instance for the purpose of criminal investigation.
However in civil related illegal contents intermediaries should give equal
opportunity to both rights’ holders and content providers to express their views before
removing illegal content. Hosting service providers should investigate the legitimacy of
content before taking down it from website. For example in the copyright infringement
case, notice providers should fill some legal forms in order to prove their ownership to
copyright and should show unfair use by content providers before giving a notice.
3. Reforms on the E-Commerce Directive in the light of U.S approach in notice
and action procedure.
3.1. The requirements for notification.
According to the EU legislation simple notification by rights
’
holders is considered
as “actual knowledge” and causes liability to hosting service providers. In most cases ISPs
do not assess the legitimacy of notice in order to avoid from liability. Putting some
specific requirements to fill a notification would protect hosting service providers from
abusive situations. Consequently it would reduce the amount of imprecise notifications.
In U.S Digital Millennium Copyright Act was introduced to resolve copyright infringement
disputes. Although this act has some similarities with E-Commerce Directive, it gives
much confidence to ISPs and users by providing some requirements. For instance
according to this act a valid notification for copyright infringement should contain a
signature, identification of copyrighted work, identification of alleged infringing material,
a good faith statement that the material is not authorized, a statement declaring the
accuracy of information. As mentioned above implementing such requirements in EU
legislation would reduce the amount of abusive notifications.
3.2. Counter Notifications.
Taking down certain content without giving opportunity to submit counter-notice
may have negative impact on the rights of freedom of expression and information.
Although E-Commerce Directive does not provide any provisions for counter-notice, it
has been already introduced in many countries such as Finland, Lithuania and Germany.
Under such system, after taking down of illegal content service providers should inform
content providers about their rights to give counter notification. If users give counter-
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notice, then rights holders have 10 days to decide to give a claim to the court. If a suit is
not be filled in 10 days, ISPs may reinstate the content again. However, it is argued that
the ten days waiting period may jeopardize the right of expression. As author
’
s opinion
instead of the ten days’ time period there should be introduced “as soon as reasonably
practicable” term in order to avoid to undermine the freedom of expression.
However some right holders and ISPs consider that counter-notice procedure
takes much time and makes the notice and action procedure less effective. Moreover,
counter notice procedure cannot be applied to all contents. For instance, it is not
appropriate to ask an opinion of the provider of child pornographic contents which has
imminent threat to society.
3.3. Actions against abusive and misrepresentative notifications.
Since the internet was opened for commercial purposes, a great deal of
information has been used by people and organizations. However, using information by
third party is not always illegal. Sometimes notice providers may try to use the power of
notification in bad faith in order to get the benefit of competitors. One of the most
troubling areas of E-Commerce Directive is that it does not provide liability for sending
bad notice. One research showed that 41% of all Google notice targets can be classed as
competitors of the complainants. It means that notice and action procedures can be used
as a tool for censorship of criticism or competition. To prevent certain abusive notices
there should be some sanctions. Differing from E-Commerce Directive, U.S Digital
Millennium Copyright Act provides liability to cover any damages, costs and attorneys'
fees if either the notice providers or users make knowing, material misrepresentations in
a notice or counter notice. Introducing such kind of remedy in EU legislation would
protect the parties from unfair competition and improves the quality of notifications.
CONCLUSION
To conclude notice and action procedures in the EU are not well established to
resolve any internet related disputes. As discussed above it can be seen in several factors.
First, Art 14 of E-Commerce Directive does not provide further explanation to the terms
of “actual knowledge”, “expeditiously”, “remove or disable access”.
That is why different
national courts have interpreted these terms in different ways. Second, horizontal
application of NTD procedures is not well adapted to resolve all of the illegal content. For
instance, criminal related illegal content like child pornography requires different
treatment than civil related contents. So there should be distinction between civil and
criminal illegal contents. Finally, current EU legislation does not have provisions for
specific requirements for notification, counter-notice procedure and liability against
abusive notifications. Providing such frameworks in the EU legislation would help to use
notice and action procedures in fair way.
REFERENCES:
1.
Delfi AS v Estonia [2015] Case no. 64569/09 European Court of Human Rights
2.
Godfrey v. Demon Internet, [1999] 4 WLUK 224
3.
L’Oreal and Others v eBay,
[2011] Case C-324/09, Court of Justice of the
European Union.
4.
Zeran v. America Online, Inc [1997] 129 F.3d 327.
5.
EC Directive on Electronic Commerce, 2000.
6.
Irish Copyright and Related Rights Act 2000.
7.
Table of Legislation (US).
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Communications Decency Act 1996.
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