Why You Should Respond to the e-Commerce Consultation

The European Commission has launched a new public consultation on the future of the 2000 e-Commerce directive, which forms the basis of the Internet regulatory framework across the European Union. The reform of the e-Commerce directive is very important for rights and freedoms on the Internet, and all interested citizens and organizations should take the time to submit a response to the consultation by November 5th. By doing so, they can make sure that the democratizing potential of the Internet as well as the rule of law will be preserved.

What is at stake in the e-Commerce directive?

The European Union is engaging in a major overhaul of Internet law, with the launch of a public consultation on the future of the e-Commerce directive. The directive – which covers a wide range of topics – was adopted in 2000 and established a legal equilibrium that protects Internet users’ freedom of communication by limiting the liability of so-called “technical intermediaries”, such as Internet access providers¹Article 12 and hosting services²Article 14. This balanced approach has allowed for the development of a participatory online ecosystem in which technical intermediaries do not have to monitor the activities of Internet users in order to regulate online content³The directive provides in its article 15 that “Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity”.. It has also allowed for new services and applications to be deployed without being hindered by burdensome legal requirements.

Inconsistencies in the way the directive is implemented

Unfortunately, as outlined in a study commissioned by the European Commission, judges across Member States have had differing interpretations of these legal provisions, and have been tempted to give technical intermediaries a greater role in suppressing an increasingly wider range of allegedly problematic information, with regrettable consequences for the freedom of expression of Internet users⁴For a recent and much-debated example, see: http://news.bbc.co.uk/2/hi/8533695.stm . In our view, in the face of this inconsistencies, the reform of the directive should be an opportunity to reinforce the procedural protections for Internet users who express themselves online.

Freedom of expression is at risk

With the revision of the directive, many lobbies are at work to make sure that private Internet actors will play a greater role to police the network. In particular, after ACTA and the Gallo report, the copyright industries will put pressure on EU lawmakers to increase the legal liability of Internet actors and continue their decade-long and disastrous war on sharing. They are particularly interested in forcing Internet access providers to filter the data flowing through their networks, which could have disastrous consequences on both freedom of communication and privacy.

Even more worrying is the fact that public authorities are keen on abandoning a rigorous interpretation of the “limited liability” clauses of the e-Commerce directive. This summer, the Commission released a draft recommendation regarding the fight against “the dissemination of illegal content”⁵European Commission, 2010, “Draft Recommendation for Public-Private Partnership to Counter the Dissemination of Illegal Content Within the European Union”. Address : http://www.edri.org/files/Draft_Recommendations.pdf in which it proposes that Internet hosting providers automatically withdraw certain types of allegedly illegal content⁶The document mentions child abuse websites, terrorism and racism, but these document already represent an extension of policies previously already used in the filed of child abuse content. Further “mission creep” in the realm of defamation, copyright infringements and other less important abuses of freedom of expression seems highly plausible. upon notification by enforcement authorities and competent organizations⁷Private organizations or hotlines, such as the British Internet Watch Foundation., without prior nor even subsequent judicial ruling⁸For a sound analysis of the draft recommendation, see joint civil society/industry position on the draft recommendation by EDRi and ISPA: http://www.edri.org/edrigram/number8.15/edri-euroispa-notice-takedown-commission.

How to respond?

In the face of these looming threats on freedom of expression, it is very important that citizens, scholars along with non-governmental organizations take on the important task to respond to the consultation by November 5th in order to promote the rights and freedoms on the Internet and ask EU lawmakers to enact more effective protections for online speech.

The issues relating to the legal liability of technical intermediaries are addressed in “issue 5″ of the online questionnaire (p. 16. Questions 52-69), which is quite long. You may also want to comment on the rather biased-stance taken by the Commission in the first part of the questionnaire, where Internet users are portrayed as passive consumers rather than active participants in the new informational environment.

• You can address the questions of your choice and do not have to reply to the whole document.
• You can write in the language in which you’re most comfortable. Any language spoken in the European Union is accepted.
• There is no requirement regarding the length or the form of the answer.

Useful resources

• Sjoera Nas’ talk on “The Multatuli Project ISP Notice & take down”.
• EDRi and EuroISPA position paper against the Commission’s demands regarding “notice and takedown”.
• La Quadrature’s defense of “amendment 138”, a provision whose goal was to assert the quasi-exclusive role of the judiciary to impose restriction on people’s access to the Internet.
• We will also publish our response in the following days in order to give interested citizens and organizations some guidance on possible ways to answer the questionnaire.

Sample of important questions regarding online freedom of expression

56. What practical experience do you have regarding the procedures for notice and take-down? Have they worked correctly? If not, why not, in your view?

58. Are you aware of cases where national authorities or legal bodies have imposed general monitoring or filtering obligations?

60. Do you think that the introduction of technical standards for filtering would make a useful contribution to combating counterfeiting and piracy, or could it, on the contrary make matters worse?

67. Do you think that the prohibition to impose a general obligation to monitor is challenged by the obligations placed by administrative or legal authorities to service providers, with the aim of preventing law infringements? If yes, why?

69. Do you think that a lack of investment in law enforcement with regard to the Internet is one reason for the counterfeiting and piracy problem? Please detail your answer.