On 27 September, the European Commission will publish proposals for tackling unlawful content on the internet. The draft report that has been revealed to reporters is not very prescriptive in order to avoid a repeat of the 2014 scenario when Michel Barnier, who was commissioner at the time, unsuccessfully suggested introducing an EU directive to this end.
The draft communication is not very revolutionary. It does not put forward any changes to the rules although it does announce that further regulatory measures have not been ruled out. Instead, it lists a raft of guidelines and principles for avoiding, removing and invalidating access to various types of unlawful content on the internet. The document says that the growing phenomenon of 'fake news' is not covered by the communication although the stated principles can be applied to an extent when it comes to detecting false news.
Overall, the report seeks to strike a balance between removal of content and protection of fundamental rights online. Intense lobbying led to Michel Barnier’s draft directive being left in limbo in 2014.
The draft communication says that platforms have a duty of care and must therefore respect due process. Hence it backs a degree of cooperation between platforms and the responsible authorities via contact points or digital interfaces, where appropriate.
Trust flaggers
In practice, the Commission says that anyone should be able to flag up content they feel may be unlawful using a simple and easily accessible mechanism. Private users should not be required to identify themselves unless this is required to determine the legality of the content. The Commission says, however, that some bodies have expertise and their warnings should lead to speedier withdrawal of content. Such trust flaggers could be selected in line with European criteria. In the draft report, the Commission gives a non-exhaustive list of criteria relating to respect of democratic values that industry would agree with via EU guidelines or through EU standardisation. Other criteria mentioned include internal training standards, transformation standards, quality pledges and guarantees of independence, promotion of privacy and absence of conflicts of interest.
Managing content withdrawal
The draft text states that platforms should do all they can to proactively detect and identify unlawful content. There must be the option of challenging withdrawal and restoring content as soon as possible where required. To avoid the reposting of illegal content, platforms must take measures to discourage users from repeatedly loading unlawful content and try to end such practices (by suspending or cancelling accounts) in communication with the user in question. For content that has already been flagged up and deemed unlawful by an individual or a competent third party, the Commission encourages the use of automatic technology but states that a guarantee of reversibility must be provided for dealing with mistakes.
The Commission says that it will access the facility of reference targets in terms of withdrawal times and, through structured dialogue with industry, it will examine the option of standardised flagging and reporting procedures.
No impact on the e-commerce directive
Unsurprisingly, the European Commission says that the principles for withdrawal respect the e-commerce directive in terms of safe harbour exemption from responsibility for platforms not playing an active role. It points out that under the e-commerce directive, online platforms must withdraw unlawful content effectively when informed about the existence of such content if they want to benefit from the exemption from responsibility. It therefore encourages them to use voluntary, proactive measures to flag up and remove unlawful content and to cooperate and invest in automatic detection technology.
This means that proactive measures taken by platforms to improve the detection of potentially unlawful content – particularly the use of automatic tools and tools to ensure that withdrawn content is not reloaded – will not lead to or signify loss of the exemption from responsibility.
The document notes that work on withdrawal will be concluded by the spring of 2018. (Original version in French by Sophie Petitjean)