Notes

From Napster to Tech Giants From an environment where providers were passive, to an active position.

As from the e-Commerce Directive to the Digital Single Market Strategy. We are moving from a Directive centered principally on the economical aspect, to a fundamental rights dimension.

The Digital Single Market This strategy was based in the need of ruling platforms. There are 3 pillars of Digital Single Market Strategy:

• Access, better access for consumers and businesses to digital goods and services across Europe.
• Environment, creating the right conditions and a level playing field for digital networks and innovative services to flourish.
• Economy & Society, maximizing the growth potential of thedigital economy.

The DSM is important because the digital environment is pervading our society. It's not just an economic reason, the role of fundamental rights and the ECJ in shaping platforms responsibilities (e.g. Delfi case, Scarlet case). (shift of paradigm).

The Digital Single Market: the future of ISP in Europe This 3 documents are not binding, are more intended to make clear the goals of DSM:

• Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe -- COM 2016 (288).
  • A level playing field for comparable digital services.
  • Responsible behavior of online platforms to protect core values.
  • Transparency and fairness for maintaining user trust and safeguarding innovation.
  • Open and Non-Discriminatory markets in a data-driven economy.

(We need a new framework in which platforms are more responsible, protecting core values; to achieve this purpose they will follow a transparent and fair approach).

• Commission Reccomendation of 1.3.2018 on measures to effectively tackle illegal content online - C(2018) 1177.
  • Submitting and processing notices.
  • Informing content providers and counter-notices.
  • Out-of-court dispute settlement.
  • Transparency.
  • Proactive measures.
• Communication on Tackling Illegal Content Online - Towards an enhanced responsibility of online platforms - COM 2017 (555)

Internet Service Providers

• The European Perspective (Art. 15 of E-Commerce Directive)

General rule: liability exception for ISPs as far as they act as intermediaries (service providers) and not as content providers.

(Platforms take editorial decision on content that does not create but manages).

• Hosting Providers (Art. 14)
  • The service provided consists of the permanent storage of information (YouTube, Google Video, Facebook, ...)
  • The host provider is not liable for the information stored on request of the content provider.
  • Liability exceptions do not apply if the author of the content is acting under the authority or the control of the hosting provider.

(We are not dealing with personal data processing (GDPR), but we are dealing with content, there are some intersections between the two of course).

Reforms of ISP Liability The system of the e-Commerce Directive has not been repealed.

• Directive 2019/790 - Copyright Directive (Applied)

A new role for online platforms? (or content sharing providers)

• Recital 61, "In recent years, the functioning of the online content market has gained in complexity. Online content-sharing services providing access to a large amount of copyright-protected content uploaded by their users have become a main source of access to content online. [...] However, although they enable diversity and ease of access to content, they also generate challenges when copyright-protected content is uploaded without prior authorisation from rightholders. Legal uncertainty exists as to whether the providers of such services engage in copyright-relevant acts. [...] That uncertainty affects the ability of rightholders to determine whether, and under which conditions, their works and other subject matter are used, as well as their ability to obtain appropriate remuneration for such use." - Definition of Online Content Sharing Providers.
• Recital 62, "Certain information society services, as part of their normal use, are designed to give access to the public to copyright-protected content or other subject matter uploaded by their users. [...] The services covered by this Directive are services, the main or one of the main purposes of which is to store and enable users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit therefrom, either directly or indirectly, by organizing it and promoting it in order to attract a larger audience, including by categorizing it and using targeted promotion within it. Such services should not include services that have a main purpose other than that of enabling users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit from that activity."

Use of protected content by online content-sharing service providers

• Art. 17 (1), "Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

  An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter."

• Art. 17 (3), "When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article.

  The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of Directive 2000/31/EC to those service providers for purposes falling outside the scope of this Directive".

• Art. 17 (4), "If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
  • Made best efforts to obtain an authorisations, and
  • Made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event
  • Acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b)."
• Art. 17 (5), "In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account:
  • the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and
  • the availability of suitable and effective means and their cost for service providers."

(The Directive here is taking into consideration the Proportionality).

• Art. 17 (6), "Member States shall provide that, in respect of new online content-sharing service providers the services of which have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million, calculated in accordance with Commission Recommendation 2003/361/EC, the conditions under the liability regime set out in paragraph 4 are limited to compliance with point (a) of paragraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites. Where the average number of monthly unique visitors of such service providers exceeds 5 million, calculated on the basis of the previous calendar year, they shall also demonstrate that they have made best efforts to prevent further uploads of the notified works and other subject matter for which the rightsholders have provided relevant and necessary information."

• Directive 2018/108 - Audiovisual Media Service Directive (Applied)

  A new legal framework?

• Recital 1, "New types of content, such as video clips or user-generated content, have gained an increasing importance and new players, including providers of video-on-demand services and video-sharing platforms, are now well-established. This convergence of media requires an updated legal framework in order to reflect developments in the market and to achieve a balance between access to online content services, consumer protection and competitiveness."

• Art. 1 (1) (aa), "Video-sharing platform service" means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union, where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing."

  (A video sharing platform has not editorial responsibility, YouTube is mainly a video-sharing platform, while Netflix is a content provider and has editorial responsibility).

• Applicable Provisions, Art. 28 (b) (1), Without prejudice to Articles 12 to 15 of Directive 2000/31/EC, Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect:

  • Minors from programmes [...] which may impair their physical, mental or moral development in accordance with Article 6a(1);
  • The general public from programmes [...]containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter;
  • The general public from programmes [...] containing content the dissemination of which constitutes an activity which is a criminal offence under Union law (e.g. Article 5 of Directive (EU) 2017/541).

• Applicable Provisions, Art. 28 (b) (3), "For the purposes of paragraphs 1 and 2, the appropriate measures shall be determined in light of the nature of the content in question, the harm it may cause, the characteristics of the category of persons to be protected as well as the rights and legitimate interests at stake, including those of the video-sharing platform providers and the users having created or uploaded the content as well as the general public interest.

  *Those measures shall be practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided. Those measures shall not lead to any ex-ante control measures or upload-filtering of content which do not comply with Article 15 of Directive 2000/31/EC."*

• Regulation on Terrorism (Proposal)

  • Aim of the Regulation, Recital 1, "The Regulation aims at ensuring the smooth functioning of the digital single market in an open and democratic society, by tackling the misuse of hosting services for terrorist purposes and contributing to public security in European societies. The functioning of the digital single market should be improved by reinforcing legal certainty for hosting service providers, reinforcing users' trust in the online environment, and by strengthening safeguards to the freedom of expression, the freedom to receive and impart information and ideas in an open and democratic society and the freedom and pluralism of the media".
  • Scope of Regulation, Art. 2, "The Regulation shall apply to hosting service providers offering services in the Union to the public, irrespective of their place of main establishment. This Regulation shall not have the effect of modifying the obligation to respect the rights, freedoms and principles as referred to in Article 6 of the Treaty on the European Union, and shall apply without prejudice to fundamental principles in Union and national law relating to freedom of speech, freedom of the press and the freedom and pluralism of the media.

This Regulation is without prejudice to Directive 2000/31/EC." (The directive still applies, but we still consider also Directive 2000/31/EC, that is e-Commerce Directive still applies).

• Hosting Providers and Terrorist Content,
  • Art. 3, *Hosting service providers shall act in accordance with this Regulation to protect users from terrorist content. They shall do so in a diligent, proportionate and non-discriminatory manner, and with due regard in all circumstances to the fundamental rights of the users and take into account the fundamental importance of the freedom of expression, the freedom to receive and impart information and ideas in an open and democratic society and with a view to avoiding removal of content which is not terrorist.* These duties of care shall not amount to a general obligation on hosting service providers to monitor the information they transmit or store, nor to a general duty to actively seek facts or circumstances indicating illegal activity. Where hosting service providers obtain knowledge or awareness of terrorist content on their services, they shall inform the competent authorities of such content and remove it expeditiously.

(This is a clear example of the shift from an economic based regulation, to a fundamental rights one, where the rights play a big role in the decision of content regulation).

• Art. 4 (2), Hosting service providers shall remove terrorist content or disable access to it as soon as possible and within one hour from receipt of the removal order.

• Art. 6, Without prejudice to Directive (EU) 2018/1808 and Directive 2000/31/EC hosting service providers may take specific measures to protect their services against the public dissemination of terrorist content. The measures shall be effective, targeted and proportionate, paying particular attention to the risk and level of exposure to terrorist content, the fundamental rights of the users, and the fundamental importance of the right to freedom of expression and the freedom to receive and impart information and ideas in an open and democratic society.

• Transparency Obligations, Art. 9,

  • Where hosting service providers use automated tools in respect of content that they store, they shall provide effective and appropriate safeguards to ensure that decisions taken concerning that content, in particular decisions to remove or disable access to content considered to be terrorist content, are accurate and well-founded.
  • Safeguards shall consist, in particular, of human oversight and verifications, of the appropriateness of the decision to remove or deny access to content, in particular with regard to the right to freedom of expression and freedom to receive and impart information and ideas in an open and democratic society.

• Effective Remedy, Art. 10,

  • Hosting service providers shall establish an effective and accessible mechanism allowing content providers whose content has been removed or access to it disabled as a result of specific measures pursuant to Article 6, to submit a complaint against the action of the hosting service provider requesting reinstatement of the content.
  • Hosting service providers shall promptly examine every complaint that they receive and reinstate the content without undue delay where the removal or disabling of access was unjustified. They shall inform the complainant about the outcome of the examination within two weeks of the receipt of the complaint with an explanation in cases where the hosting service provider decides not to reinstate the content. [...]

• Regulation on e-Evidence (Proposal)

  • Aim and Scope

    This Regulation lays down the rules under which an authority of a Member State may order a service provider offering services in the Union, to produce or preserve electronic evidence, regardless of the location of data.

    "Electronic evidence" means evidence stored in electronic form by or on behalf of a service provider at the time of receipt of a production or preservation order certificate, consisting in stored subscriber data, access data, transactional data and content data.

    The Regulation also applies to information society services as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council 44 for which the storage of data is a defining component of the service provided to the user, including social networks, online marketplaces facilitating transactions between their users, and other hosting service providers.