European Commission Recommendation on illegal content online

What new measures will be required of online hosting service providers in relation to the European Commission Recommendation on measures to effectively tackle illegal content online?

The background

In September 2017, the European Commission adopted a Communication with guidance on the responsibilities of hosting service providers in respect of illegal content online, explaining that the Commission would assess whether additional measures were needed. The Commission has now released a Recommendation 'on measures to effectively tackle illegal content online' following up on their Communication.

The development

The Recommendation published by the European Commission recognises that the presence of illegal content online has 'serious negative consequences for users, for other affected citizens and companies and for society at large'. As such, online 'hosting service providers' (defined in the Recommendation as a provider of information society services consisting of the storage of information provided by the recipient of the services at his or her request) have a responsibility to tackle such illegal content and should be able to take swift action regarding illegal content online.

The Recommendation also states that it relates to all hosting services providers, irrespective of whether they are established in the Union or in a third country, as long as they direct their activities to consumers in the Union. Illegal content is defined as 'any information which is not in compliance with Union law or with the law of Member States'.

Recommended measures to tackle illegal content

The Recommendation states that illegal content online should be tackled with 'effective, appropriate and proportionate measures'. Such measures must also be done in compliance with fundamental rights of all parties concerned, such rights including, amongst others:

• freedom of expression;
• the rights to respect for a person's private life;
• the right to the protection of personal data; and
• the right to effective judicial protection of the users of the relevant services.

As such, decisions by hosting service providers to delete or disable access to online content should take account of the fundamental rights and legitimate interests of their users, alongside the central role that such providers play in 'facilitating public debate and the distribution and reception of facts, opinions and ideas in accordance with the law'. The Recommendation also sets out that it is sufficient to take account of the laws of the Member State in which the service provider is established, or the State in which the services are provided.

Notice-and-action mechanisms

The Recommendation states that provision should be made for mechanisms to submit notices to hosting service providers, which are easy to access and user friendly. Such mechanisms should allow for notices which are sufficiently precise and adequately substantiated to allow the receiving provider to take an informed and diligent decision regarding the notice.

Where content is subsequently removed by a hosting service provider, the provider (where possible) should inform the content provider of that decision and the reasons for taking it (unless it is obvious the content is illegal and relates to serious criminal offences involving a threat to life). The Recommendation also makes provision for a content provider to contest any such decision to remove content by submitting a counter-notice.

Proactive measures

Alongside such notice-and-action mechanisms, hosting service providers should be encouraged to voluntarily take 'appropriate, proportionate and specific proactive measures' regarding illegal content, including using automated means to detect such content. In order to avoid removal of legal content, particularly in the context of automated means, there should be effective and appropriate safeguards to ensure hosting service providers act in a 'diligent and proportionate manner' and that any automated decisions are accurate and well-founded. The Recommendation also encourages cooperation amongst different hosting service providers, and also with 'trusted flaggers' (being entities with particular expertise and responsibilities for tackling illegal content online) to help in the battle against illegal content online.

Terrorism measures

The Recommendation introduces further, specific measures which should be introduced in relation to terrorist-related illegal content online, particularly in relation to dealing with 'referrals' from Member States and competent authorities to take down terrorist related content. Again, the Recommendation encourages hosting service providers to take proportionate and specific proactive measures and to cooperate with other hosting service providers in order to detect, identify and expeditiously remove or disable access to terrorist content.

Reporting

The Recommendation also makes provision that Member States should report to the Commission (preferably every three months) on any referrals submitted by the competent authorities, and the relevant decisions taken by the hosting service providers, alongside information on cooperation with providers regarding tackling terrorist content.

Why is this important?

The Commission's Recommendation sets out a wide suite of proposed measures to tackle illegal content online. These measures place a heavy burden on 'hosting service providers' and will need to be assessed carefully in order to see what actions providers will need to take. The Recommendation does take account of the 'limited resources and expertise' of some hosting service providers, but at the same time still encourages proactive action in tackling illegal content online, and so it is clear that the Commission expects at least some action from all concerned providers.

Any practical tips?