Shielding the Messengers: CDT Comments on Notice-and-Action

Written by Andrew McDiarmid

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

Any guidelines to harmonize “notice and action” policies for content hosts must focus on maintaining strong liability protections and providing effective safeguards against abuse. That was the message CDT reiterated to the European Commission last week in our response to its public consultation on the issue. These comments (and appendix) are the latest in a series of contributions CDT has made since the Commission first picked up the issue in February, when CDT offered a set of principles to guide the inquiry.

Unlike in the US – where the Digital Millennium Copyright Act lays out a specific notice-and-takedown procedure that hosts must follow to be shielded from copyright liability – the E-Commerce Directive (ECD) that guides EU states’ intermediary liability protections offers only a higher-level framework. It covers all content, and has been implemented in a wide variety of ways in different countries, some adopting formal notice-and-takedown systems, others not. The Commission is considering issuing guidelines to help harmonize the processes across the EU.

CDT’s comments start from the proposition that liability protection should be available to the full range of content hosts that are relevant on today’s Internet, and that any notice-and-takedown system needs to target illegal content with specificity and care. We stress that protection should be unequivocally extended to “active hosts” and that so-called notice-and-stay down obligations are inconsistent with the ECD’s prohibition on general monitoring obligations. And CDT believes that private notice-and-takedown should only apply in areas where unlawful conduct is straightforward. Allowing notice-and-takedown for defamation and other content whose legal assessment requires difficult factual and legal determinations allows far too much opportunity for abuse.

A major focus of our comments is what steps can be taken to prevent abuse of notice-and-takedown where it is implemented. Abuse and mistakes under the DMCA and the threat they pose to online free expression have been well documented by CDT and other advocates. To prevent actions that result in the takedown of lawful material, we recommended a combination of strict requirements for notices, transparency requirements to expose abuses, and strong appeal and counter-noticing procedures – including the availability of meaningful penalties for those who send abusive, misleading, or negligent notices.

Lastly, the comments urge the Commission to consider “actions” other than takedown. Although the questionnaire focused on takedown, it is just one among a wide range of actions that can help address illegal content. Notice-forwarding by access providers, for example, can alert users of the allegations being made and the possibility of legal action against them – without the risk that lawful content will come down by mistake before a user has the chance to respond or a court has the chance to intervene.

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