It is now the turn of the European Parliament to tackle the issue of liability exemptions for Internet providers. On Tuesday 28 November, its research service published a study calling for this provision included in the “e-commerce” directive to be made secure.
The study was carried out by Professor Giovanni Sartor, from the European University Institute of Florence and advises against making exemptions conditional on the “role” played by the provider or on its objective. These ideas are currently being examined as part of the debate on the “copyright” directive (see EUROPE 11895).
The rules on intermediaries’ liability are around 20 years old: the directive on e-commerce (2000/31/EC) includes an exemption of liability for intermediaries who are unaware of illegal activity or who have knowledge about it and take swift action to withdraw litigious information (article 14).
It also adds that these intermediaries do not have to monitor the information they transmit or store (article 15).
The report points out that there is currently a tendency to optimise the number of exempted liability included in the directive on e-commerce. Even though there is no reference to it, one obviously thinks about article 13 on the legislative proposal on copyright. In an effort to reduce value disparity this calls for, “appropriate and proportionate measures to ensure the protection of protected content, such as effective implementation technologies”.
Exemption must be maintained
The report considers that it is not the active or passive role of an intermediary to influence exemptions to liability or even the commercial objective of this provider. It points out that, “it is not the passivity of intermediaries that justifies exemption but rather their role as facilitators of communication”. It highlights the fact that exemptions to liability must cover the main intermediaries, such as search engines and collaborative platforms. This exemption must also cover the “active” intermediaries as well as their commitments to the activities of their users, which are covered by their intermediary services, including the withdrawal in good faith of inappropriate or superfluous content.
On the other hand, the exemption should not apply to cases where the illegal behaviour of users is facilitated by the intermediary’s due diligence. It concludes that “due diligence, whose violation can lead to secondary liability, must be specified for different user activity, distinguishing, for example, the communications between users, production of advertising, economic transactions, the distribution of malware software, etc. The business models and the means available should be taken into account to establish due diligence”. The study can be consulted at: http://bit.ly/2AHww4D (Original version in French by Sophie Petitjean)