EU Laws Regulating Online Intermediaries [Paraphrased].
I read through some EU legislation outlining the liability regime for online platforms and paraphrased it into something easily understandable. Warning: As I’ve simplified the language some important details may be omitted. This is a guide only.
E-Commerce Directive (2000)
-> Article 14)
Hosting:
1. Where user data storage services are provided (i.e. Youtube, Dropbox, Imgur…), member states shall exempt providers from liability for the information stored, on condition that;
a) the provider has no actual knowledge of illegal content
b) upon obtaining actual knowledge of illegal activity, acts expeditiously to remove of disable access to the content.
2. This (paragraph 1) will not apply when the user is acting under the authority or control of the intermediary.
3. Notwithstanding this, a court may still require an intermediary to terminate or prevent access to an infringing work (in accordance with local legal systems), and member states may still establish procedures to govern the removal or disabling of access to content.
Draft directive on Copyright in the Digital Single Market
- Recital 38)
Where intermediaries store and provide access to copyrighted works uploaded by users = they are going beyond performing an act of communication to the public. In this case they must conclude licensing agreements with rightsholders, unless they are protected from liability under Article 14 of e-commerce Directive (paraphrased above).
In respect of Article 14, it is necessary to verify whether the intermediary plays an active role in promoting or optimising the presentation of content.
In order to ensure the functioning of licensing agreements, intermediaries [that store and provide public access to large amounts of works uploaded by users] should take measures to ensure protection of said works by, for example, implementing effective technologies.
This should also apply when intermediaries are eligible for protection from liability under Article 14 of the E-commerce Directive.
- Recital 39)
Collaboration between intermediaries [storing and providing public access to large amounts of copyright works uploaded by users] and rightsholders is essential for the functioning of content identification technologies.
In such cases, the rightsholders should provide relevant and necessary data for this content identification, and the intermediaries should be transparent with rightsholders about what content identification technology is deployed to allow rights holders to assess their appropriateness.
Intermediaries should divulge:
- Type of technology used
- The way it is operated
- The success rate of identification
The content identification technology used should also allow rightsholders to get information from the intermediary on the use of their content covered by an agreement.
- Article 13)
Use of protected works by intermediaries [storing and providing access to large amounts of works uploaded by users].
1. Intermediaries shall, in cooperation with rightsholders, take measures to ensure the functioning of agreements concluded to prevent access to works identified by rightsholders through the cooperation with the intermediary. These measures (ie implementing content identification technology) will be appropriate and proportionate. The intermediary shall provide adequate information on the functioning and deployment of the measures, as well as, adequate reporting on the recognition and use of the works.
2. Intermediaries shall set up complaint and redress mechanisms for users in case of disputes.
3. Member states shall facilitate the cooperation between intermediaries and rightsholders through stakeholder dialogues to define best practices, taking into account the nature of the intermediaries, the technology available and its effectiveness in light of technological developments.
