Wednesday, November 25, 2009

European law on hosting platforms

As you can imagine, I've spent a lot of time researching European law on hosting platforms. International legislation recognizes that hosting platforms like Google Video are neither the creators nor the controllers of content. The European Union's Electronic Commerce Directive, enacted in 2000, sets a clear legal framework for establishing liability for unlawful content on the Internet. It provides a safe harbor for entities acting as intermediaries, drawing a clear line between those who create content, and those who, in their capacity as technological intermediaries, provide the tools to make this content publicly available. By establishing legal certainty and creating a single EU-wide standard, the E-Commerce directive allows the development of open platforms that promote free expression and the free flow of information on an unprecedented scale, and play a crucial role in the development of the new economy in Europe.

How does the E-Commerce prescription work in real life? Say an Internet user uploads a video filled with illegal hate speech, nudity, or violence. When notified of this illegal content, the hosting platform is obliged to take it down. The hosting platform, however, is not obliged to monitor and prevent the upload. The responsible party is the Internet user who posts the content. In this case, Google did exactly what the law requir
es - it removed the content upon notification, and took the further step of complying
with law enforcement requests, helping to bring the wrongdoers to justice.

If Google and companies like it were responsible for every piece of content on the web, the Internet as we know it today – and all of the economic and social benefits it provides – would disappear. Without appropriate protections, no company would be immune: any potentially defamatory text, inappropriate image, bullying message or violent video would have the power to shut down the platform that had unknowingly hosted it. In the offline world, it would be like criminally prosecuting post office employees because someone mailed an inappropriate letter. European law recognizes the importance of providing limitations on the liability of hosting platforms.

The Directive applies horizontally across all areas of law which touch on the provision of information society services, regardless of whether it is a matter of public, private, or criminal law. This is confirmed in the first Report from the Commission to the European Parliament on the application of Directive 2000/31/EC dated 8 June 2000. See p. 4: "The Directive applies horizontally across all areas of law which touch on the provision of information society services, regardless of whether it is a matter of public, private, or criminal law. Furthermore, it applies equally both to business-to-business (B2B) and business-to-consumer (B2C) e-commerce." And see p. 12: "The limitations on liability provided for by the Directive are established in a horizontal manner, meaning that they cover liability, both civil and criminal, for all types of illegal activities initiated by third parties."

From a public policy perspective, it wouldn't make any sense if it didn't apply to criminal charges. The objective of the directive was to foster a competitive and dynamic knowledge-based economy in the EU. To provide an environment in which its citizens would have access to inexpensive, world-class communications infrastructure and a wide range of services. To create conditions for e-commerce and the internet to flourish. To enhance quality of life, to stimulate innovation and job creation, and to contribute to the free flow of information and freedom of expression. Those are words directly from the Commission. It wouldn't make any sense to apply these protections only to civil matters; doing so would permit criminal claims to eviscerate the very benefits the directive sought to achieve.

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