According to Peter Hustinx, the European Data Protection Supervisor (EDPS), the European Commission should define more precisely what it considers “illegal content” for the purpose of applying ‘notice-and-action’ procedures. Hustinx made the remark on behalf of the EDPS in response to the European Commission’s consultation on procedures for notifying and acting on illegal content hosted by online intermediaries. 

Currently, the Commission has listed examples of what can be regarded as “illegal content”, in their consultation round. However, this open formulation leads to a broad definition, ranging from intellectual property right infringements to terrorism related content. The current definition touches upon several fields of law, which have to be taken into consideration by hosting service providers when acting upon a ‘notice-and-action’ request. 

For example, the EDPS stresses that, under the current definition, hosting service providers may have to process personal data in regards to criminal behaviour, which is considered sensitive personal data and therefore requires additional safeguards in terms of data protection. Moreover, this  poses a risk for hosting service providers; even though they are exempted from liability for illegal activities of others under the E-Commerce Directive, they can still be held liable for breaches of data protection laws. Additionally, several types of infringement, currently listed under “illegal content”, might require the involvement of law enforcement authorities or legal specialists to verify its illegal nature. 

According to the EDPS, hosting providers other parties are often better suited to deal with certain request, for instance, privacy infringements should preferably be reported to national data protection authorities instead of hosting service providers. Hustinx says that defining conditions and modalities for forwarding requests to the competent authorities, would lead to more clarity amongst hosting service providers regarding the handling of notices of alleged illegal content. 

What these conditions and modalities would encompass, and whether they will have an effect on current intermediary liability concerning copyright, remains to be seen. 

Read more about similar topics on Future of Copyright:

• Neelie Kroes calls for copyright harmonisation in Europe
• New developments in debate on openness public sector data
• ECJ: No general monitoring responsibility for social networks

Sources: The Register, EDPS Formal Comments

Written by: Nathalie Falot