EU: platforms will not lose defence to liability for illegal content they host by proactively detecting and removing that material

Out-Law News | 05 Oct 2017 | 5:01 pm | 1 min. read

Online platforms would not expose themselves to becoming liable for illegal content uploaded by their users by proactively detecting and removing such material from their sites, the European Commission has said.

It said it did not believe platforms that acted in a proactive way to detect and remove illegal content, published on their sites by others, would lose their protection from liability for that under the terms of the EU's E-Commerce Directive.

Under the EU's existing E-Commerce Directive, content hosts are generally protected from liability for material that they neither create nor monitor but simply store or pass on to users of their service.

Service providers are not liable for infringement via their services if they do not have "actual knowledge" or an awareness of the illegal activity. In circumstances where they obtain such knowledge, providing a service provider "acts expeditiously to remove or to disable access to the information" they are not liable for that infringement.

Under the Directive, service providers can not be put under any general obligation to police illegal activity on their service.

However, in a recent communication on tackling illegal content online, the Commission said online platforms should "adopt effective proactive measures to detect and remove illegal content online and not only limit themselves to reacting to notices which they receive".

It backed the use of technologies that enable platforms to automatically detect illegal content, including material that has been previously uploaded and removed.

"The Commission is of the view that proactive measures taken by those online platforms which fall under Article 14 of the E-commerce Directive to detect and remove illegal content which they host – including the use of automatic tools and tools meant to ensure that previously removed content is not re-uploaded – do not in and of themselves lead to a loss of the liability exemption," the Commission said.

"In particular, the taking of such measures need not imply that the online platform concerned plays an active role which would no longer allow it to benefit from that exemption. Whenever the taking of such measures lead to the online platform obtaining actual knowledge or awareness of illegal activities or illegal information, it needs to act expeditiously to remove or to disable access to the illegal information in question to satisfy the condition for the continued availability of that exemption," it said.