legal framework to combat illegal content

5. Creating an innovation-friendly and Europe-wide harmonised legal framework to combat illegal content

The Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the e-commerce Directive) laid the foundations for the successful development of online commerce and the platform economy in Europe and ensured freedom of expression on the Internet. The European-wide principles of the e-commerce Directive, which have been in place for 20 years, have helped businesses to grow strongly, new business opportunities to emerge on the Internet and have been given more choice to consumers. This has made a major contribution to the European economic activity. In order to continue to address the rapidly increasing socio-political and economic importance of Internet services, the planned legislative amendment must be developed in an innovation-friendly and uniform manner throughout Europe. Especially regarding liability issues and the legal framework for combating both illegal and harmful content, it is very important to achieve a genuine harmonisation without parallel developments. We therefore support the European Commission's plan to improve and update terminology in areas where the e-commerce Directive can no longer keep pace with new technological developments and to improve the noticeand-take-down procedure accordingly. At the same time, it is also important to maintain the tried and tested regulatory principles of the e-commerce Directive.

5.1. Maintain the general regulatory principles of the e-commerce Directive

The liability of online intermediaries is a particularly important area of Internet law worldwide. Without harmonised exclusions of liability - the so-called liability privilege, the country of origin principle and the prohibition of a general duty of supervision - which apply to online intermediaries in the Internal Market, the Internet industry would in all likelihood not have been able to develop and establish itself as it is today. These basic principles will continue to contribute to the success of the Internet and its digital services. It is therefore important to maintain these regulatory principles despite and precisely because of the new policy challenges posed by the increased role and responsibilities of Information Society services.

5.1.1. Adequacy of the liability exclusions (liability privilege)

Generally, the exclusions of liability for the various information society services as laid down in the e-commerce Directive (Articles 12-14 of the e-commerce Directive), in particular the so-called liability privilege, are appropriate. However, the current voluntary and active efforts of platform operators to combat illegal activities are not always sufficient. While maintaining the general liability privilege of the e-commerce Directive, possibilities of assuming responsibility should rather be discussed, depending on and differentiated according to the type of service provider and content and with a view to freedom of action and freedom of opinion. Thus, the current legal framework should be used to strengthen incentives for service providers to actively seek infringements, including in the field of intellectual property.

5.1.2. General supervisory duties

Since the absolute monitoring of offers on the platforms is not possible or only possible at disproportionate expense for the operators, the ban on imposing a general monitoring obligation for all information society services (Art. 15 of the e-commerce Directive) should generally be maintained. Nevertheless, incentives should be created to encourage platforms to search for illegal content on their platforms on a voluntary basis. It could be envisaged that, in general, right-holders would be responsible for monitoring and notification, and intermediaries should then act swiftly in response to this actual notification of an infringement. This would create a good balance on the online marketplace.

5.1.3. Country of origin principle

With regard to the liability rules and the regulatory principles of the e-commerce Directive as a whole, the country of origin principle (Article 3(1) and (2) of the e-commerce Directive) must be strengthened, particularly for the future. A departure from the country of origin principle, a basic prerequisite for the free choice of the place of establishment of providers and the free movement of digital services in the Digital Single Market, would send the wrong signal.

5.2. Adapting the definition of intermediaries to new technical circumstances

Since the entry into force of the e-commerce Directive the internet has developed rapidly, hence several of today´s intermediaries can no longer be

subsumed under the original definitions - provision of access, caching and hosting. In order to respond to this technical development and to remove uncertainties, a clear legal definition of intermediaries and a corresponding adaptation of the concepts of "mere conduits", "caching services" and "hosting services" is necessary. Although certain established services, such as an online shop, can be easily subsumed under the term host provider, newer technologies, such as keyword advertising for brands, cannot easily be assigned to the term host provider. The same applies to the other terms mentioned, which are not only linguistically out of date.

In addition, the terms "of a purely technical, automatic and passive nature" used in recital 42 of the e-commerce Directive need to be overhauled. While these terms continue to apply to some services, such as cloud infrastructure services, they are no longer appropriate for other services. In fact, even the ECJ has consistently found it extremely difficult to classify new technologies as "purely technical, automatic and passive". This is made clear by the case law of the Court of Justice of the European Union in its decision L'Oréal vs. eBay, in which it introduced a "neutrality requirement" for host providers, which cannot be inferred from the wording of the 42nd recital and has therefore rightly been heavily criticised in the literature.

5.3. Classification of digital services: taking account of differences

The classification of digital services must take account of differences according to defined criteria. The criteria for different treatment of platform operators should be based on content rather than sector. For example, a streaming platform should be distinguished from an online marketplace with physical products, while the latter can in principle be treated equally in different sectors. On the basis of these criteria, the codification of platforms should also be based on separate notice-and-take-down procedures.

5.4. Notice-and-take-down procedures need further codification

The notice-and-take-down procedure, together with the liability privilege, should be further codified within the existing legal framework and as far as technically feasible. There must be clarity as to what content is actually illegal and from which services it must be removed. The control influence that online intermediaries have over content should be taken into account. New obligations should only apply to those online intermediaries who are actually able to edit and moderate content distributed to the public. Only then can existing legal uncertainties be removed and online intermediaries be given more responsibility.

In order to define the conditions that notifications or statements must fulfil to be valid and what is necessary to prevent unlawful notifications, errors and abuses, differentiated guidelines should be used. The clearer the conditions for illegal content, the better and faster the response. Some platform operators already use such procedures (e.g. Google trademark complaint) to be channelled and fully informed about infringements on their platforms. It should be noted, however, that these procedures are designed differently on each platform, that different information is requested for the same infringements on different platforms, that the processing time can vary and that there is no independent complaints body for unauthorised deletions. It would therefore be helpful to have EU-wide guidelines on how notice-and-take-down procedures should look in detail, that they should be unbureaucratic and simple and that they can be found and filled in with just a few clicks. This would also be conceivable together with a harmonised, trustworthy labelling system ("flagging").

Furthermore, it should also be regulated what needs to be done in the disputed case of a notice-and-take-down procedure by taking into account the specifics of the respective branches and sectors and measurable by the principle of proportionality and should be designed in different ways, as different providers face different challenges due to their different offer of services and content. In other words, they also have different procedural requirements.

However, where a notice-and-take-down procedure has taken place in respect of undisputed illegal content and goods, the appearance of such content and goods which have been previously reported and checked should also be proactively prevented to the best of our efforts ("best efforts") (stay-down). Furthermore, it could be uniformly regulated that contents which are literally identical with the illegal statement are to be deleted (ECJ judgement of 04.10.2019, Ref. C-18/18).

5.5. Ensure better enforcement by establishing a monitoring authority

Improving enforcement, accompanied by a new approach to commitments, will require appropriate supervision or monitoring to ensure uniform application and enforcement of the rules applicable across Europe and to ensure consistency for all parties. The benefit of a monitoring authority will be to help online intermediaries to meet their responsibilities and to ensure a control mechanism for taking proportionate measures. It is crucial that the focus of the Authority's work is limited to monitoring the actions of service providers. It could also serve as a complaints body, similar to the European Union Online Dispute Resolution Platform, for disputed deletions on online

platforms, in order to resolve legal disputes on online platforms in a discreet and unbureaucratic way.

About the BDI

The BDI communicates the interests of German industry to those with political responsibility. In this way it supports companies in global competition. It has an extensive network in Germany and Europe, in all important markets and in international organisations. The BDI provides political support for international market development. And it offers information and economic policy advice on all industry-related topics. The BDI is the umbrella organisation for German industry and industry-related service providers. It speaks for 40 industry associations and more than 100,000 companies with around 8 million employees. Membership is voluntary. 15 state representatives represent the interests of industry at regional level.

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Brussels Office: 58 Rue Marie de Bourgogne 1000 Brussels

Contact person

Kathrin Hintner Senior Manager Phone: +3227921008 k.hintner@bdi.eu

Stefanie Stündel Senior Manager Phone: +3227921015 s.stuendel@bdi.eu

BDI document number: D 1218