European Commission: “Notice and action” and stronger civil law enforcement of IP rights

The European Commission released a (provisional) communication with suggestions to boost Europe’s e-commerce. Below are some outtakes.

No need for revision of the E-commerce Directive. Liability of online intermediaries needs clarification and better implementation

The Directive on Electronic Commerce removed a series of obstacles to crossborder online services. It is crucial to legal certainty and confidence for both consumers and businesses. Its internal market clause, which states that the Member States may not restrict the freedom to provide information-society services from another Member State, is the cornerstone of the Digital Single Market. The consultations and analyses carried out indicate that a revision of the Directive is not required at this stage. It is, however, necessary to improve the implementation of the Directive (in particular through better administrative cooperation with the Member States and an in-depth evaluation of the implementation of the Directive), provide clarification, for example concerning the liability of intermediary internet providers, and take the additional measures needed to achieve the Directive’s full potential, as identified in the current action plan. Recourse to the IMI system, already in place for other European legislative instruments, could facilitate administrative cooperation between Member States when it comes to enforcing the e-commerce Directive.

Notice and action

The mechanisms to stop abuse and illegal information must therefore be made more efficient, within a framework which guarantees legal certainty, the proportionality of the rules governing businesses and respect for fundamental rights. In the Annex, the European Commission describes in detail the differing interpretations which are at the root of the above-mentioned problems. In view of the growing volume of statutory and case-law in the Member States, it now appears necessary to set up a horizontal European framework for notice and action procedures.*

* The notice and action procedures are those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification. The intermediary may, for example, take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online. This initiative should encourage rather than undermine more detailed initiatives in certain fields. For instance, the European Protocol signed in May 2011 between major rights-holders and internet platforms on the online sale of counterfeit products requires, in addition to a notification and take-down procedure, action against repeat infringements as well as proactive and preventive measures.

Action could thus be the removal or blocking of content. Should this be done by e.g. YouTube and hosting providers, or also by ISPs? And what about due process? Just remove upon notification? “Respect for fundamental rights”?

Plus, (even) stronger civil law enforcement of intellectual property rights

In parallel to this, the Commission will revise the Directive on the enforcement of intellectual property rights in 2012 in order to combat illegal content more effectively and in a manner which upholds the internal market and fundamental rights by improving the framework for civil law proceedings. The creation of the European notice and action framework will be without prejudice to this initiative.

And more private codes of conduct

Cooperation between stakeholders, in particular internet providers, rights-holders and payment services, in the European Union and the US, may also help to combat illegal content.

And who will represent me? An Internet user?