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EU Commission will clarify website notice and takedown procedures

The European Commission will clarify the procedures for taking down and blocking access to illegal content after complaints that the rules were unclear and resulted in illegal content staying online for too long, it has said.12 Jan 2012

A "targeted public consultation" will be launched later this year to obtain views on how the procedures can be improved, the Commission said. Under the EU's E-Commerce Directive internet service providers (ISPs) and website hosts are generally not liable for illegal content communicated by others, but are required to act to remove the material under certain circumstances.

Respondents to a 2010 consultation on e-commerce issues had complained the rules on the notice and takedown process were unclear, causing illegal content to stay online too long, legal uncertainty for companies and individuals' rights to be ignored.

"The Commission will analyse how notice-and-action [N&A] procedures can work in a way to best address these concerns," a statement from the Commission said.

"For this purpose, it seeks answers to questions such as: how exactly should an intermediary be notified? Should that be done electronically? Should the notice contain a detailed internet address? Should a content provider have an opportunity to explain why he thinks certain content is not illegal? If content is illegal, how fast should an intermediary act? Should there be more transparency about the N&A procedures of individual companies? The Commission wants to involve all stakeholders in this initiative to get the right answers to these and other questions," it said.

The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any obligation to police illegal activity on its service.

Service providers are not liable for infringement via their services if they do not have "actual knowledge" of the illegal activity or having obtained such knowledge "acts expeditiously to remove or to disable access to the information".The Directive is implemented in the UK by the E-Commerce Regulations.

Gillian Anderson, expert in intellectual property law at Pinsent Masons, the law firm behind Out-Law.com, said that the process for removing content in breach of copyright or trade marks varied in individual cases and was dependent on factors including the circumstances of alleged breaches and the differing policies of service providers.

"At the moment the practice of removing illegal content from websites varies substantially as a result of varying terms and conditions used by website domain registrars," said Anderson. "Often individual website owners will not respond to requests to remove illegal content. This means that, in the case of copyright or trade mark rights holders, they need to show domain registrars that website owners are in breach of their terms and conditions in order to compel those registrars to act to remove the material."

"The terms and conditions of registrars vary and each set of terms may specify different governing laws and jurisdictions where notice and takedown rules may be applied slightly differently. A process to clarify the way the rules operate in the EU would be welcome, although a global resolution to this problem is required to ensure consistency."

"What rights holders can request be removed or disabled depends on the nature of the illegal content posted. It can vary from specific content within web pages, such as videos or logos, or on rare occasions entire websites. However, as has been shown in the Newzbin2 case in the UK, service providers are very reluctant to disable access to swathes of content unless a court orders them to do so. The Newzbin2 precedent was set following an expensive legal battle and was an action under the UK's Copyright, Designs and Patents Act (CDPA) rather than the E-Commerce rules as a result," Anderson said.

Last year the UK's biggest internet service provider (ISP) BT was ordered by the High Court to block its customers' access to the Newzbin2 website "and any other IP address or URL that the operators of Newzbin2 may use".

Newzbin 2 is a members-only site which collates links to a large amount of illegally-copied material including films, music and computer games, found on Usenet discussion forums.

The Court made the ruling under Section 97A of the CDPA. That Act gives UK courts the power to grant an injunction against an ISP if it had 'actual knowledge' that someone had used its service to infringe copyright. Six major film studios - including Disney and Fox - had requested the action, claiming that the site was infringing their rights by allowing use to link to their copyrighted works for free.

Sky has subsequently followed BT in blocking access to Newzbin2 following a court order forcing it to do so, whilst the Motion Picture Association (MPA) has also requested that TalkTalk and Virgin also block access to the site.

Since the Newzbin2 ruling the British Recorded Music Industry (BPI), a trade body funded by major record labels and independent music companies, has also asked BT to block access to The Pirate Bay – a file-sharing website the BPI said "defrauds musicians and other creators of their wages". BT has said it would only block access to the site on receipt of a court order forcing it to do so.

Courts in Finland and Holland have recently issued orders compelling ISPs in those countries to block access to The Pirate Bay.

The European Court of Justice (ECJ) last year issued a ruling based on a case in Belgium where an ISP had been ordered by a court in the country to install technology that would monitor user activity in order to identify copyright infringement.

The ECJ ruled that national courts cannot force ISPs to use filter systems, installed at ISPs' own expense and used for an unlimited period, to monitor all its customers' electronic communications to prevent illegal file-sharing. It said that such an order would breach ISPs' rights to freely conduct business and individuals' rights to privacy, free speech and the protection of their personal data.