Presentation at Université de Namur on 20 and 21 March 2018

1. Eleonora Rosati
Should online platforms do more
to tackle unlawful content online?
Université de Namur
20-21 March 2018

2. here

6. 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?

7. 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?

8. 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?

9. 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?

10. In sum

11. But that’s not all

12. The case of IP
The existing EU framework and the role of the CJEU The DSMS Towards a change?

14. 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?

15. 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?

16. 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?

17. 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?

22. 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?

23. The DSMS
The existing EU framework and the role of the CJEU The DSMS Towards a change?

24. 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.

25. 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?

26. Tackling illegal content

27. 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?

28. Is this something new?
The existing EU framework and the role of the CJEU The DSMS Towards a change?

29. • Safe harbour regime
• Fundamental rights
• Proactive filtering

30. Conclusion
• Complex legal framework
• Various principles
• Wealth of CJEU case law
• Policy action … but …

31. eleonora@e-lawnora.com
@eLAWnora
Thanks for your
attention!