European Commission to more closely define online content ‘host’

By Peter Gothard
07 Jun 2012 View Comments
European commission

The European Commission (EC) is to nail down the exact legal definition of an online content "host", starting with a survey to find out how users notify and act on illegal internet content, and what the phrase "service provider" actually means to people in terms of playing host to content on the internet.

The ultimate aim will be to incorporate that definition into pan-European laws, enabling law enforcement authorities across the EU to more easily take quick action over allegations of copyright infringement.

Further reading

EU E-Commerce Directive Article 14 is the clause in question, which states that, should a service provider store information provided by a recipient of its service, they will not be liable for any illegal content as long as they do not have knowledge of illegal activity or, upon obtaining such knowledge, "acts expeditiously" to remove or disable access to the information.

In 2010, the European Commission tackled Article 14, again with a survey, by trying to gauge user perceptions of the so-called "notice and takedown" part of the legislation.

However, 2012's attempt will take this even further. The 2012 survey will try to find out whether a "service provider" can actually be considered a "host", which is currently defined as "storage of (content) that has been provided by the user of an online service".

While websites clearly host content in the traditional sense, the EC questions whether user-driven services such as social networks, cloud services and video sharing sites should and do fall under the same category.

"Online intermediaries face high compliance costs and legal uncertainty because they typically have operations across Europe, but the basic rules of Article 14 are interpreted in different ways by different national courts (sometimes even within the same member state)," states the Commission's survey.

The survey goes on to ask participants how far they agree or disagree with phrases such as "actual knowledge", "awareness" and "expeditiously", explaining that these have formed the basis for diverging national case-law.

"Notice providers and hosting providers have to adapt their practices in accordance with these interpretations," states the survey.

The survey also discusses the suspected refusal of many content hosts to act on suspected illegal activity, for fear of then declaring knowledge of that activity in the first place, and being open to further legislative action.

Pointing to last July's Court of Justice of the European Union ruling, in which L'Oréal successfully clashed with eBay for hosting the sale of counterfeit cosmetic goods, the survey asks whether such hosts should in future be protected against liability for proactive measures.

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