Documents considered by the Committee on 29 November 2017 Contents

5Digital Single Market: Tackling illegal content online

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested

Document details

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Tackling Illegal Content Online Towards an enhanced responsibility of online platforms

Legal base

Non-legislative

Department

Digital, Culture, Media and Sport

Document Number

(39079), 12879/17, COM(17) 555

Summary and Committee’s conclusions

5.1On 28 September 2017, as part of its Digital Single Market Strategy,95 the European Commission published a Communication entitled ‘Tackling Illegal Content Online—towards an enhanced responsibility of online platforms’.96 This responds to growing concerns among the Member States as well as in the Commission about the use of digital platforms by some users to upload content including terrorist propaganda, child pornography, and copyright-protected content.

5.2The Communication is a non-legislative document and does not harmonise the definition of what constitutes illegal content as such. Instead, it provides voluntary guidance to online platforms and other online services that host content, such as cloud storage businesses, social media companies and video sharing sites, on the notification and removal of online illegal content as well as the avoidance of over-removal where content is legal.

5.3One current source of legal uncertainty in this policy space concerns the main EU legal framework for the removal of illegal content online, the Electronic Commerce Directive (ECD):97 stakeholders have suggested that the exemptions from liability that the ECD grants service providers are unclear, and that if providers were to play too active a role in monitoring and removing content from their platform they might cease to benefit from those exemptions. The guidance provided by the Communication clarifies that platforms which employ a proactive approach to identifying and removing illegal content will benefit from a so-called Good Samaritan principle, meaning that they will not lose their exemption from liability for hosted content as a consequence of taking steps to detect and remove illegal content.

5.4The Communication also provides detailed guidance regarding the types of measures that platforms can and should engage in to detect and remove illegal content. Key recommendations are that:

5.5The Commission will consult further with Member States to determine whether further action, potentially including legal measures, is necessary. This work will be completed by May 2018.

5.6On 29 November 2017 the Minister of State for Digital (Matt Hancock) provided the Committee with an Explanatory Memorandum.98 The Minister indicated his support for the guidance provided in the Communication, stating that tackling the proliferation of illegal content online is a key Government priority; EU-level action is appropriate, given the cross-border nature of the issue; and the clarification that providers can adopt pro-active measures without losing the benefit of the liability provisions contained within the ECD is helpful. The Minister particularly notes that the guidance regarding how platforms should seek to prevent the re-appearance of copyright infringing material, once it has been removed, could reduce the economic harm done to UK-based creative industries.

5.7In relation to the UK’s imminent withdrawal from the EU, the Minister does not identify any significant implications in relation to this dossier, which he regards as “routine EU business”; however, he notes that if the EU proposes further legislation, this could influence UK negotiating objectives.

5.8We thank the Minister for his memorandum concerning the Communication ‘Tackling Illegal Content Online—towards an enhanced responsibility of online platforms’. We note that the Government broadly supports the approach that the Commission has taken of providing voluntary guidance, and that this guidance is in line with Government policy.

5.9We particularly note the UK intellectual property office’s view that the guidance contained in section 5 of this Communication “could go some way to prevent the re-appearance of copyright infringing material on the internet, thereby reducing the economic harm done to UK-based creative industries”. As preventing large-scale copyright-infringement is a longstanding concern of the sector, and the guidance provided by this Communication – which, although voluntary, relates to the operation of EU legal acts including the Electronic Commerce Directive – has the potential to reduce it, we ask that the Government provide an account of the implications of withdrawal from the European Union for UK rights-holders concerned about EU-based infringements: i.e., in the absence of a UK-EU bilateral agreement, how would the switch to third-country status affect the extent to which UK rights-holders are effectively protected against EU-based copyright infringement, including the re-appearance of copyright infringing content, and able to seek enforcement against large-scale infringement within the EU?

5.10The Commission concludes that it will assess whether additional measures – which could be legislative – are needed to ensure the swift and proactive detection and removal of illegal content online. The Minister observes that this further work by the Commission “may in turn influence our negotiating objectives—especially if the EU considers legislation.” We ask the Minister to clarify what he means by this. Is the Government strongly against EU legislation in the areas that the Commission mentions? If legislation is proposed on these issues, how does the Minister anticipate it will modify the Government’s negotiating objectives?

5.11We ask for a response to these questions, together with any updates from Council, by 10 January 2017 (or earlier if progress in Council requires it). In the meantime we retain this document under scrutiny.

Full details of the documents

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Tackling Illegal Content Online Towards an enhanced responsibility of online platforms: (39079), 12879/17, COM(17) 555.

The Communication

5.12On 28 September 2017 the Commission adopted a Communication entitled ‘Tackling Illegal Content Online—towards an enhanced responsibility of online platforms’.99 This non-legislative document provides voluntary guidance for online platforms and other online services that host content, such as cloud storage businesses, social media companies and video sharing sites, on the notification and removal of online illegal content and the avoidance of over-removal where content is legal.

5.13The Commission explains that it has published this guidance in response to concerns expressed by the European Council about the proliferation of online terrorist propaganda, and calls from the European Parliament for platforms to take further action to tackle illegal content.

Exemptions from liability, the Electronic Commerce Directive and the Good Samaritan principle

5.14The proliferation of illegal content on online platforms, according to the Commission, is increasingly occurring through online services that host, or allow upload of, third party content (‘hosting’). The key EU legal framework for the removal of illegal content in such formats is the Electronic Commerce Directive (ECD).100

5.15A key element of the ECD is the principle that intermediary service providers (ISPs) are not liable for the content of “illegal” information that they transmit, cache or host, subject to certain conditions. In cases of “caching” (automatic, intermediate and temporary storage of information) those conditions include that the service providers do not modify the information, whereas in cases of “hosting” (storage of information) the providers should not have actual knowledge of the illegality and should act expeditiously to remove or disable access on becoming aware of it.

5.16The Staff Working Document101 which supported the Digital Single Market Strategy said that this principle had underpinned the development of the Internet in Europe and was seen to have remained relevant; however, it also expressed concerns that the removal of illegal content was in some cases slow and complicated. However, the document stated that divergent approaches were being taken by Member States, which was creating legal uncertainty about how the ECD applied. Other stakeholders were cited as expressing concern about lack of clarity regarding the liability exemptions set out in the ECD, in a rapidly changing digital environment.102

5.17A central objective of the present Communication is therefore to provide clarification to online platforms and other online services about the types of measures that they can and should adopt to detect and remove illegal content without losing the benefit of the liability provisions contained within the e-Commerce Directive (ECD). This legal approach is described as a legal ‘Good Samaritan’ principle, which means that the platform will retain its exemptions from liability under the ECD, and laws protect the “Good Samaritan” from liability if unintended consequences result from their assistance.

Specific guidance

5.18The Communication provides specific guidance about:

5.19In relation to the detection and notification of illegal content, the Communication sets out the roles and procedures that online platforms and other online services, competent authorities and users could follow to improve the detection of illegal content. The main points include:

5.20In relation to removal of illegal content, the Commission provides guidance about how platforms and other online services should remove illegal content as quickly as possible and that the removal of such content should not impede the work of law enforcement. The main points include:

5.21In relation to preventing the re-appearance of illegal content, the Communication provides guidance to platforms and other online services on the measures they could take to ensure that once they have detected and removed illegal material, it does not then re-appear online. The main points include:

5.22The Commission concludes that it expects platforms to use this voluntary guidance to take further proactive measures against illegal material, especially terrorism and illegal hate speech. It also states that it will consult further with Member States and civil society to determine whether further action, including legislative measures, is needed in this area. This work will be completed by May 2018.

The Minister’s Explanatory Memorandum of 27 November 2017103

5.23The Minister of State for Digital (Matt Hancock) supports the proposed approach of providing voluntary guidance for private sector operators.

5.24The Minister states that:

5.25In terms of financial implications, the Minister states that if an online business chose to use this guidance to remove illegal content from its platform, it is possible that it could incur costs, if it did not have the relevant processes in place already.

5.26In terms of Brexit implications, in addition to its generic remarks, the Minister notes only that “this is routine EU business on which we will seek to get the best outcome for the UK”. He notes that the Government will play a full and active part in shaping the ongoing Commission work that follows the publication of the guidance, which could influence UK negotiating objectives − “especially if the EU considers legislation”.

Previous Committee Reports

None.


99 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM(17) 555.

102 See for example OECD, The role of internet intermediaries in advancing public policy objectives, 2011.




1 December 2017