European Commission seeks views on definition of content 'host'

Out-Law News | 06 Jun 2012 | 4:17 pm | 3 min. read

The European Commission has opened a consultation asking for views on what kinds of online service providers should be considered as 'hosts' of content.

A 'host' of content has less responsibility for that content under EU law than a publisher.

The Commission had previously announced plans to reform 'notice and takedown' rules that govern illegal material posted on the internet. Respondents to a 2010 consultation on e-commerce issues had complained that rules on the notice and takedown process were unclear, with the result that illegal content stayed online too long; legal uncertainty was created for companies, and individuals' rights were ignored.

Now the Commission has published a questionnaire seeking "an updated vision of stakeholders" on how they perceive current rules on 'notice and takedown' set out under the EU's E-Commerce Directive. Under that Directive online hosts of content are generally not liable for illegal content communicated by others, but are required to act to remove the material when notified of its existence.

Under the Directive 'hosts' are defined as platforms that store information in order to provide "information society services" to recipients. However, the Commission said that whilst it is generally accepted that websites are generally hosts of content, it is less clear whether other service providers should be considered as hosts. It has asked whether the definition is "sufficiently clear" and whether search engines, social networks, video-sharing sites, cloud services and cyberlockers, amongst others, should be considered as hosts.

The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any obligation to police illegal activity on its 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 or having obtained such knowledge "acts expeditiously to remove or to disable access to the information". The Directive is implemented in the UK by the E-Commerce Regulations.

In its questionnaire the Commission asked for views on which service provider should be responsible for removing or disabling access to illegal material where more than one such provider is said to be hosting it. Stakeholders are also asked whether set timeframes for removing illegal content should be introduced, which would update the existing regime's  requirement that the hosts act "expeditiously" to remove the material when they become aware of it.

The Commission's questionnaire also asked stakeholders for their views on what form takedown notices should take when they are issued to service providers and whether there should be rules to help curb the number of abusive or unjustified notices that are served.

The Commission is also seeking views on how best to avoid legal content being removed following takedown requests. It raised the options of requiring more detailed notices to be served in the first place and requiring hosts to consult content providers before taking down material as among the potential solutions to the problem.

In a ruling last year the European Court of Justice (ECJ) found that online marketplaces retain their immunity from liability for infringing sales unless they have "played an active role" in the sale. In the case, which involved a dispute between L'Oreal and online auction site eBay over the sales of fake perfumes, the ECJ said that the immunity provided for by the E-Commerce Directive does not apply when marketplaces take an "active role" in promoting sales and gather information that should lead it to be aware of trade mark infringements.

The Commission has asked whether hosting service providers should be protected against liability that could result from them taking pro-active measures to prevent against hosting illegal material.

Gillian Anderson, expert in intellectual property law at Pinsent Masons, the law firm behind, said in January that the process for removing content in breach of copyright or trade marks varied in individual cases and was dependent on factors including the circumstances of alleged breaches and the differing policies of service providers.

"At the moment the practice of removing illegal content from websites varies substantially as a result of varying terms and conditions used by website domain registrars," said Anderson. "Often individual website owners will not respond to requests to remove illegal content. This means that, in the case of copyright or trade mark rights holders, they need to show domain registrars that website owners are in breach of their terms and conditions in order to compel those registrars to act to remove the material."

"The terms and conditions of registrars vary and each set of terms may specify different governing laws and jurisdictions where notice and takedown rules may be applied slightly differently. A process to clarify the way the rules operate in the EU would be welcome, although a global resolution to this problem is required to ensure consistency."

"What rights holders can request be removed or disabled depends on the nature of the illegal content posted. It can vary from specific content within web pages, such as videos or logos, or on rare occasions entire websites. However, as has been shown in the Newzbin2 case in the UK, service providers are very reluctant to disable access to swathes of content unless a court orders them to do so. The Newzbin2 precedent was set following an expensive legal battle and was an action under the UK's Copyright, Designs and Patents Act (CDPA) rather than the E-Commerce rules as a result," Anderson said.