"Now you see it, now you don't": Q&A on N&A

Formerly the "take-down" came first, and
everyone suddenly noticed. Now it's notice first,
followed by take-down ...

Madrid-based Magali Delhaye has previously been very helpful in keeping an eye on IP developments in the general area of the European Commission, and now she's being helpful again. This time, she has just sent the IPKat this epistle on the Commisson's new initiative -- a Public Consultation on procedures for notifying and acting on illegal content hosted by online intermediaries. This is what Magali tells us:

"In an earlier post, the IPKat reported that the European Commission had announced, in its Communication of 11 January 2012 on e-commerce and other online services (“A coherent framework for building trust in the Digital Single Market for e-commerce and online services”), that it would adopt a horizontal initiative on notice and action procedures in 2012.

Within this framework, the Commission has now launched, on 4 June 2012 a Public Consultation on procedures for notifying and acting on illegal content hosted by online intermediaries. The Questionnaire specifies that "Illegal content" corresponds to the term "illegal activity or information" used in Article 14 of the e-commerce Directive [Directive 2000/13, here] and that it may be understood as including, among other things, intellectual property infringements.

The Public Consultation’s questionnaire identifies three main problems with the functioning of Notice-and-Action (N&A) procedures that had been highlighted by respondents to the Public Consultation on the future of e-commerce and the implementation of the E-commerce Directive (2010):

* “Online intermediaries face high compliance costs and legal uncertainty because they typically have operations across Europe, but the basic rules of Article 14 are interpreted in different ways by different national courts (sometimes even within the same Member State). In particular the terms "actual knowledge", "awareness" and "expeditiously" have led to diverging national case-law. Notice providers and hosting providers have to adapt their practices in accordance with these interpretations. [it's interesting that the different interpretations given to Article 14 are seen as an inconvenience for online intermediaries, says Merpel: do they not also cause problems for IP owners who have to give notice to the intermediaries?]

* Illegal content stays online too long. This is partly due to what is perceived as a lack of sufficiently clear rules and easily identifiable procedures. 

* Fundamental rights are not always respected. In particular, there are instances where legal content is taken down, which can amount to a restriction of the right to freedom of expression and information. This arises partly as a result of liability fears on the part of hosting providers and the fact that the providers of alleged illegal content are in general not consulted before a hosting service provider takes action. ["not consulted" -- but consultation, whether by the IP rights owner or by the online intermediary, also increases compliance costs and is likely to ensure that illegal content will stay online for longer -- which may make it tempting for the provider of allegedly infringing content to cooperate with the consultation process as slowly and reluctantly as it can]”

The objective of the Public Consultation is to provide the European Commission with the views of all stakeholders on specific issues related to the functioning of the notice and action procedures in Europe in the context of article 14 of the e-commerce Directive in order to assist it in elaborating the N&A initiative. An updated version of the European Commission’s Roadmap on an “Initiative on a clean and open Internet: procedures for notifying and acting on illegal content hosted by online intermediaries” can be found here.

According to the Roadmap the objectives of this initiative are to:

* Contribute to developing trust and therefore growth in (cross-border) online services, thus enhancing the functioning of the Digital Single Market. 

* Contribute to combating illegality on the internet. 

* Ensure the transparency, effectiveness, proportionality and fundamental rights compliance of N&A procedures. 

* Ensure a balanced and workable approach towards N&A procedures, with a focus on fundamental rights and the impact on innovation, growth.

The Public Consultation's questionnaire can be accessed online through this link. The deadline for submissions is 5 September 2012".

The IPKat welcomes the consultation and does like the idea of Article 14 being interpreted in a consistent manner across the 27 jurisdictions which it covers. Do take the opportunity to respond to the consultation. If nothing else, it affirms the principle that people who are affected by legal provisions should be given a chance o say what they think, in contrast with the approach taken when stitching together the content of ACTA.