On 28 September, the European Commission released a Communication on tackling illegal online content, under the heading “Towards an enhanced responsibility of platforms”.  The communication sets out (non-legally-binding) guidelines for online platforms to move to “step up the fight” against illegal online content.  Tackling infringing content online is a well-recognised problem for the owners of rights in sports events and a topic which has been extensively covered in the past (from the Commission’s September 2016 proposed copyright Regulation to the Premier League’s blocking injunctions, the commitment of search engines to reduce the visibility of illegal content in search results, and the UK IPO’s recent report on the challenges of social media and online IP infringement).  The Commission’s communication represents the latest development in this area and, as is evident from its very title, one which will be welcome news to rights-holders.

Articles 12 – 14 of the E-Commerce Directive (transposed into UK law by the E-Commerce Regulations 2002) provides liability exemptions for online intermediaries, including “mere conduits”,  “hosts”, and providers of caching services.  Of particular relevance is Article 14 which contains the hosting defence.  Broadly, the Article 14 defence protects information society services (e.g. social media platforms, ISPs etc.) from liability for infringing content they host, provided that they do not have knowledge of the content in question.  Importantly, once the platform becomes aware of the illegal content, its protection from liability is lost unless it acts “expeditiously” to remove the content in question. This is a key reason why rights-holders devote time and resource to issuing take-down notices.  In addition, Article 15 of the E-Commerce Directive prevents member states from imposing on online intermediaries any “general obligation to monitor” content.

As such, under the current regime, online intermediaries are somewhat disincentivised from taking action which may result in the loss of their defence under the E-Commerce Directive.  However, in recent years, EU legislative proposals, policy documents, and court judgments have begun to indicate a move away from the current level of protection from which online intermediaries benefit, with the Commission’s communication representing the latest instalment in this trend.

Whilst the Commission acknowledges that its Communication (and the guidelines it contains) are not legally binding, it puts forward a number of key themes:

• That the Commission considers that intermediaries “should, in light of their central role and capabilities and their associated responsibilities, adopt effective proactive measures to detect and remove illegal content online and not only limit themselves to reacting to notices which they receive” (though it also suggests that this should not automatically lead to the intermediary losing all protection of the defence under Article 14);

• Hosts must have regard to their ‘duty of care’ and responsibility to ensure a safe online environment for users, which deters and prevents infringing activities online;

• Online platforms should consider the use of ‘trusted flaggers’ (specialised entities dedicated to identifying infringing content) to assist with more reliable and faster take-down processes; and

• the use of automatic detection and filtering technologies is encouraged, as it is becoming an increasingly important tool in the fight against illegal content online.

Whilst this guidance will be welcome news to rights-holders, certain elements will cause controversy. For example, it is not clear precisely how the Commission sees these guidelines interacting with the Article 15 restriction on placing positive monitoring obligations on intermediaries.   In addition, interest groups such as the Open Rights Group have previously criticised moves by the EU to impose such positive monitoring obligations, expressing concern that they will inevitably be performed by automated processes which will act as a “blunt instrument” and result in numerous incorrect takedowns, thereby presenting a risk of a disproportionate restriction of fundamental and artistic rights.

For now, the debate continues.  As mentioned above, the Commission has expressly recognised the non-legally-binding nature of its guidelines. However, as a policy document, it will doubtless carry significant weight and serves as an indicator of the policy direction of the EU in this area.  Further clarity is expected by May 2018, by which time the Commission expects to have completed further monitoring and assessment, including possible legislative measures to “complement” the existing framework.