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Consultation on European Liability Rules

Monday, August 13, 2012 - 16:55

Another consultation response: this time to a European Commission review of the e-Commerce Directive (2000/31/EC). The Directive addresses a number of different issues around electronic commerce, but the area of most interest to those who run websites or networks is the rules on liability for content in Articles 12 to 15. For networks, the Directive says that they cannot be liable for any breach of the law by third party content they transmit; for web and other hosts there is no liability until they are informed of a specific problem. These protections are essential for the way the Internet works: for example if web hosts were instead treated like newspaper publishers then they would have to check every item before publishing it.

However, over the ten years that the Directive has been in force, some uncertainties have emerged about how it works in practice. Protection from liability is only available if a network “does not select or modify the information contained in the transmission” and if a web site does not have “actual knowledge” of what is published. Courts in other European countries have apparently used these qualifications to find in some cases that ISPs and hosts might have legal liability for third party content, despite the Directive. Our response therefore asks for greater clarity and, if necessary, strengthening of the liability protections, especially as both users and governments seem to be expecting that in future networks and websites will do more filtering and proactive checking: the same areas where courts have raised liability problems.

The consultation also asks whether technical filtering can be made more effective. Here I’ve pointed out the great difference between filtering to protect users from content they don’t want to see (for example inappropriate material and viruses), and attempting to use it to prevent access to content that users want. Not only is the latter type of filtering bound to fail (Internet technology simply provides too many ways around any blocks), but imposing it is likely to encourage users to adopt filter-evading technology, thereby also exposing them to the risks they actually want to be protected from.