Article 15 of the European Ecommerce Directive states that
Member States shall not impose a general obligation on providers ... to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
The European Commission have opened a consultation on “notice and action” procedures (in the UK we tend to refer to them as notice and takedown) by those who host content on the Internet. Since Janet customers may see a different side of the issue from us as operators of the network, it would be helpful to get your comments to inform our response.
First there are some specific questions from the consultation:
Two consultations have come along at once – one from Westminster and one from Brussels – that both seem to recognise the problems with incentives that current liability rules create for sites that host third party content.
An interesting case, reported by SCL with a good article explaining the issues, has hinted that there might be a third defence to liability for a web host where allegedly defamatory comments are posted. However the case doesn’t provide much detail on when that defence might apply.
After ruling last year on the balance between the rights of copyright holders, users and network providers, the European Court of Justice has now ruled on the same question applied to the case of a hosting provider, the social network Netlog.
The European Court of Justice has set some limits for the sorts of measures that ISPs can be compelled to implement to discourage copyright breach by their networks. Back in 2004 the Belgian rightsholder representative SABAM sought a court order requiring an ISP, Scarlet, to install devices on its network that inspected the content of peer-to-peer communications and blocked any that appeared to contain copyright music.
That seems to be the rather depressing message from the European Court of Justice to websites that allow third parties to post content (e.g. the comments on this blog). Article 14 of the European eCommerce Directive says that those hosts are protected from liability for the content until they are aware of specific infringements of the law. Once aware, they must act expeditiously to deal with the problem.
The Advocate General to the European Court has published his recommendation for the Court's response to questions raised in the long-running Belgian case of SABAM v Scarlet. In 2007 the Belgian court ordered the ISP Scarlet, at the request of the copyright enforcement society SABAM, to implement specific Deep Packet Inspection (DPI) systems to detect and prevent its users from exchanging copyrighted material on peer-to-peer networks.
