Online Platforms - Commission communication on tackling illegal content online

The European Commission (Commission) has published a Communication containing nonlegally binding guidelines for online platforms on preventing, detecting, removing and disabling access to illegal content.

The background

On 28 September 2017 the European Commission published its Communication on “Tackling Illegal Content Online” (Communication).

Whilst acknowledging that online platforms are an important part of a thriving digital economy, the Commission stressed that “those online platforms which mediate access to content for most internet users carry a significant societal responsibility in terms of protecting users and society at large”.

The Communication itself appears to be a result not only of calls by the European Parliament (for example in its resolution on Online Platforms of June 2017, urging platforms to “strengthen measures to tackle illegal and harmful content”), but also from statements issued by the G7 and G20 Leaders and the European Council in 2017. The Communication also underpins the EU executive’s flagship Digital Single Market strategy which aims to “open up digital opportunities for people and business and enhance Europe’s position as a world leader in the digital economy”.

In the Communication, the Commission took the opportunity to confirm that at EU level, the E- Commerce Directive 2000 (Directive) provides exceptions from liability for illegal content which platforms host (Article 14) and that Article 15 prohibits Member States from imposing “a general obligation on providers, when providing the services covered by Article 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity”.

In this context therefore the aim of the Communication is to encourage a form of self regulation by facilitating and intensifying the implementation of good practices for preventing, detecting, removing and disabling access to illegal content so as to ensure the effective removal of illegal content without impacting upon the safe harbour afforded to online platforms via Article 14 of the Directive. On this point, the Communication states that:

“It follows that proactive measures taken by an online platform to detect and remove illegal content may result in that platform obtaining knowledge or awareness of illegal activities or illegal information, which could thus lead to the loss of the liability exemption in accordance with point (a) of Article 14(1) of the E-Commerce Directive. However, in such cases the online platform continues to have the possibility to act expeditiously to remove or to disable access to the information in question upon obtaining such knowledge or awareness. Where it does so, the online platform continues to benefit from the liability exemption pursuant to point (b) of Article 14(1). Therefore, concerns related to losing the benefit of the liability exemption should not deter or preclude the application of the effective proactive voluntary measures that this Communication seeks to encourage”.

Platforms are encouraged to:

• Systematically enhance their cooperation with competent authorities in Member States, while Member States should ensure that courts are able to effectively react against illegal online content online
• Appoint effective points of contact in the EU and define effective digital interfaces to facilitate their interaction
• Develop technical interfaces with law enforcement authorities and technical community to cooperate more effectively on the entire content governance cycle and advance sound solutions to the challenge
• Cooperate with trusted flaggers so as to improve the removal process over time;
• Establish an easily accessible and user-friendly mechanism that allows their users to notify content considered to be illegal, and
• Put in place effective mechanisms to facilitate the submission of notices that are sufficiently precise and adequately substantiated to enable the platforms to take a decision as to the appropriate follow up.

Why is this important?

Whilst the exception under Article 14 of the Directive remains unchanged, the Communication places a burden on online platforms to proactively detect and decide what constitutes an illegal activity – which is not always easy given the element of subjectivity involved. And of course some acts are easier to spot than others. Online platforms will no doubt take heed of the Communication as it reinforces the second condition to be fulfilled if platforms wish to fall under the exception under Article 14 – ie the need to act expeditiously to remove or to disable access to the information. The difficulty is that arguably the Communication contradicts Article 15 of the Directive, by placing a “general obligation” on platforms to monitor content which users post on their services.

The Commission is seeking a standardised and voluntary regime to deal with illegal content across the EU, so as to further strengthen and protect the Digital Single Market and also to 21 encourage platforms to embrace their societal role and responsibility. Whilst burdensome, the platforms may feel that this Communication, being non-legally binding, is preferable and less risky to comply with than numerous different laws and regulations at a national level. Only time will tell if this gentle voluntary approach is successful or not.