Notice & Action: EU Commission Must Put Freedom of Expression First

Paris, January 11th, 2012 – Following a consultation held in late 2010, the European Commission just announced an action plan on the role of Internet actors in the policing of online content1. One key issue is that of “notice and takedown” measures, which are today implemented in total opacity at the expense of users' freedom of communication. As the global war on sharing rages, this announcement underlines the pressing need for citizen involvement in this crucial debate to better protect our freedoms online.

The 2000 directive on online services (also called e-Commerce directive) sets a legal framework for most online activities2. Thanks to the liability exemptions provided to Internet actors such as access providers and service providers such as hosting platforms, the directive created a special legal framework distinct from the one regulating media and interpersonal means of communications, thereby protecting freedom of communications and promoting innovation and growth in the online sector.

However, in the last ten years, vested interests, and the entertainment industries in particular, have lobbied lawmakers and brought legal action to force Internet actors to police their networks. Policy-makers, among which the EU Commission, have been quite responsive to such demands and have pushed for greater “cooperation” between online actors, law enforcement and other stake-holders to implement extra-judicial censorship of online content3. As a result, many online services now resort to censorship mechanisms and to abusive takedown of content4 that blatantly violate users' freedom to express themselves online.

“The EU Commission's announcement shows the urgency to shed some light on the harmful practices of many Internet actors who have been forced into policing online content. Citizens' rights are often victim of privatised censorship online at the expense of the right to a fair trial. As the EU Parliament has stressed on a number of occasions, any restriction imposed on fundamental rights online must be subject to a prior decision by a judge5. But in the face of many policy proposals seeking to increase the role of Internet actors in policing online content, such as ACTA, one can fear that many lobbies will wage an all-out offensive against freedom of communication online. Citizens must closely follow the discussions on this directive and get ready to defend their rights.”, said Jérémie Zimmermann, co-founder and spokesperson of advocacy group La Quadrature du Net.

La Quadrature's proposals on “notice and action”

In late 2010, in our response6 to the EU Commission's questionnaire on the online services directive, we stressed that:

  • In the absence of court order, providers should be obliged to give their customers a reasonable time to respond (so-called “notice-and-notice” regime).
  • While waiting for the answer, content should not be be removed.
  • In case of counter-notice on the part of the customer, the provider should notify the third-party who sent the initial take-down request that the customer is challenging their claim, and propose that the case be referred to a court.
  • EU law should also provide sanctions for abusive notice and take-down demands as well as for wrongful take-downs on the part of the provider.
  • Lastly, providers should give their users clear information on their notice and take-down procedures.