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Should online platforms do more to tackle unlawful content online? (Eleonora ROSATI)

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Presentation at Université de Namur on 20 and 21 March 2018

Published in: Law
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Should online platforms do more to tackle unlawful content online? (Eleonora ROSATI)

  1. 1. Eleonora Rosati Should online platforms do more to tackle unlawful content online? Université de Namur 20-21 March 2018
  2. 2. here
  3. 3. Contents • Online platforms: the existing EU framework and the role of the CJEU • The case of IP • The Digital Single Market Strategy (DSMS) • Copyright: in particular, the value gap proposal • Tackling illegal content online • Towards a change?
  4. 4. Online platforms: The existing EU framework and the role of the CJEU The existing EU framework and the role of the CJEU The DSMS Towards a change?
  5. 5. What do we mean when we say ‘platforms’? • Not just traditional ‘information society service providers’ • Sharing economy (taxi services w/o taxis and hotels w/o hotels …) • 2016 Communication from the EU Commission • Ensuring a level playing field for comparable digital services • Ensuring that online platforms act responsibly • Fostering trust, transparency and ensuring fairness The existing EU framework and the role of the CJEU The DSMS Towards a change?
  6. 6. Relevant legislative framework • E-commerce Directive (liability of information society service providers) • IP directives • Consumer protection • Advertising • Competition law • Data protection and privacy • Criminal law (eg, terrorism, hate speech, child pornography) • Tax • National regulation (eg, taxi services) The existing EU framework and the role of the CJEU The DSMS Towards a change?
  7. 7. In sum
  8. 8. But that’s not all
  9. 9. The case of IP The existing EU framework and the role of the CJEU The DSMS Towards a change?
  10. 10. E-commerce Directive • Safe harbours • Number of conditions to be exempted from liability, including to act expeditiously to remove or disable access to allegedly infringing content upon obtaining knowledge or awareness of illegal activity or information • Prohibition of general monitoring obligations “Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.” The existing EU framework and the role of the CJEU The DSMS Towards a change?
  11. 11. InfoSoc Directive (copyright) • Article 8.3 “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” • Recital 59 “In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States.” The existing EU framework and the role of the CJEU The DSMS Towards a change?
  12. 12. Enforcement Directive • Article 3 “1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights … Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.” • Article 11 “… Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.” The existing EU framework and the role of the CJEU The DSMS Towards a change?
  13. 13. EU Charter of Fundamental Rights • Art 17: property (intellectual property) • Art 16: freedom to conduct a business (intermediaries) • Art 17: freedom of expression/information (users) The existing EU framework and the role of the CJEU The DSMS Strategy Towards a change?
  14. 14. Five key principles (CJEU) • The notion of ‘intermediary’ is broad • Injunctions can be aimed at repressing existing infringement and preventing future infringements • Injunctions must comply with various legislative sources and principles • Blocking injunctions are allowed under EU law • An intermediary can be directly (primarily) liable for third-party infringements The existing EU framework and the role of the CJEU The DSMS Towards a change?
  15. 15. The DSMS The existing EU framework and the role of the CJEU The DSMS Towards a change?
  16. 16. My first priority will be to put policies that create growth and jobs … As a key ingredient for this, we must create a digital single market for consumers and businesses – making use of the great opportunities of digital technologies which know no borders. To do so, we will need to have the courage to break down national silos in … copyright … and in competition law.
  17. 17. Copyright: the value gap proposal Recitals 38-39+Article 13 in proposal for a directive on copyright in the Digital Single Market • Where hosting providers • store and provide access to the public to copyright works uploaded by their users • thereby performing an act of communication to the public • They • are obliged to conclude licensing agreements with rightholders, unless they are eligible for Ecommerce Directive safe harbour • should take appropriate and proportionate measures, such as implementing effective technologies (also where no obligation to conclude licensing agreements) The existing EU framework and the role of the CJEU The DSMS Towards a change?
  18. 18. Tackling illegal content
  19. 19. Commission Recommendation (1/3/2018) • ‘Illegal’ means … basically everything • Easier to take content down (‘trusted flaggers’; more streamlined procedures) • Proactive filtering (good Samaritan clause) • Respect of fundamental rights (human overview) • (Voluntary) shared responsibility (helping smaller companies) • Closer cooperation with authorities The existing EU framework and the role of the CJEU The DSMS Towards a change?
  20. 20. Is this something new? The existing EU framework and the role of the CJEU The DSMS Towards a change?
  21. 21. • Safe harbour regime • Fundamental rights • Proactive filtering
  22. 22. Conclusion • Complex legal framework • Various principles • Wealth of CJEU case law • Policy action … but …
  23. 23. eleonora@e-lawnora.com @eLAWnora Thanks for your attention!

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