Media: European Commission Revamp of E-Commerce Directive Won’t Change ISP Liability Rules, Official Says

By the Washington Internet Daily Upcoming changes to the EU e-commerce directive will leave ISP liability provisions untouched, said Werner Stengg, head of unit for online and postal services for the European Commission internal market and services directorate, Wednesday at a forum on Internet self-regulation hosted by the European Parliament party Alliance of Liberals and Democrats for Europe. The EC statement on e-commerce and online services, expected to be adopted in January, will instead look at how actions such as notice and takedown of illegal content are handled to see if the processes can be clarified and better guidance given, he said. Also next year, the EC will try, with relevant stakeholders, to develop a code of practice that ensures that industry self-regulation doesn’t become “an easy way out” to make arrangements behind closed doors with no accountability, said Nicole Dewandre, advisor on stakeholder issues for the EC information society directorate. The question of who is ultimately responsible for policing the Internet is relevant to many issues, including child protection, hate speech and intellectual property rights, said Dutch ALDE lawmaker Marietje Schaake, who organized the forum. She noted a “big push” by some governments for multi-stakeholder action in areas such as inappropriate content. The e-commerce directive contains several provisions related to liability of Internet intermediaries for illegal content, Stengg said. The most important are Article 14, which spells out that hosting intermediaries aren’t liable for illegal content if they have no actual knowledge of it, but are if they become aware of it and don’t take it down or disable access to it, he said. Article 15 bars EU governments from forcing intermediaries to generally monitor online content, he said. The measure also requires that free speech principles be observed whenever content removal or disabling occurs, and sets principles on which industry self-regulation can be created, he said. There have been many different interpretations of the law by EU members and courts, Stengg said. Recent decisions that address when ISPs have “actual knowledge” and other issues indicate what the directive means but don’t provide exhaustive interpretations, he said. When the EC asked for feedback last year on how well the directive is working, most commentators said it’s okay but could be clarified, he said. The EC statement, due in January, will say the “e-commerce directive will not be changed,” he said. However, the EC will see if best practices can be used as general guidance to carrying out the processes, he said. EC Information Society efforts to create a good practice code of standards for self- and co-regulatory exercises will stress openness, transparency, sincerity &ndash- industry agreement on common goals in a frank manner — monitoring by independent bodies, compliance and sanctions, Dewandre said. With those, the EC thinks self-regulation will be viewed as complementary to other processes, including legislation, she said. Self- and co-regulation allow a more nimble approach to the increasing complexity of the Internet, she said. Command-and-control models are outdated as soon as they’re put in place, she said. Self-regulation also expands the public sphere and debate by not relying solely on lawmakers and courts, she said. Internet and digital transactions, where resiliency is needed, is an area where self-regulation can play a role, she said. The EC is shepherding self-regulation in two areas now, Dewandre said. Do-not-track standards are expected by 2012 and the EC just announced industry rules to make the Internet safer for children, she said. Digital Agenda Commissioner Neelie Kroes will announce further efforts Friday and next Monday, she said, although she didn’t specify the issues involved. ISPs face many calls to deal with illegal and inappropriate content, said European Internet Services Providers’ Association President Malcolm Hutty. He asked whether the audience included tax inspectors, child protection agencies and charities, advertising standards authorities or any others on the endless list of people who come to intermediaries with grievances about genuinely bad acts or rights infringements. The issue is what to do “about all this bad stuff,” Hutty said. ISP self-regulation initiatives have been around for a long time in the areas of child pornography, resolution of customer disputes and security, he said. Self-regulation works, but it can only be called that when the ultimate decision on actions to be taken lies with the sector that’s self-regulating, he said. Self-regulation can only happen when companies are willing to do something, capable of making a real difference without causing over-arching harm to other interests, and competent to act, he said. It’s not for industry to take on judicial functions, he said. Telecom infrastructure operators have a responsibility to keep it working, Hutty said. When technical measures advocated by those who aren’t operators will adversely affect operations, ISPs must let policymakers know, he said. ISPs “have much to gain commercially” by working with the music industry on copyright piracy, said Warner Music Group General Counsel Chris Ancliff. The only losers in deals between recording companies and ISPs are pirates, he said. Warner wants to move the debate from them-versus-us to a more cooperative commercial relationship everyone can benefit from, he said. Self-regulation tends to work better in cohesive markets like the U.S.’s than in Europe’s 27 countries, he said. The self-regulation discussion suffers from a “lack of vocabulary,” said European Digital Rights Advocacy Coordinator Joe McNamee. On one hand, it can mean industry getting together to create standards such as HTML, an approach that works well because it concerns internal processes, he said. But external processes, such as Ireland’s graduated response to online infringement, can’t effectively be handled through self-regulation, he said. One example of the self-regulatory model is the Global Network Initiative (GNI), said Jermyn Brooks, its chairman. GNI is made up of information and communication technology companies, investors, academics and human rights and other civil society organizations, he said. It has developed principles supported by guidance that companies can use to strive for the right level of upholding user free speech and privacy, he said. Companies commit to state publicly what they’re doing to comply with the principles, he said. Now, for the first time, GNI is conducting independent assessments to gauge how well businesses are putting procedures and systems in place and complying with the principles, he said. A report on the assessments is due in the spring, he said. GNI is founded on several principles, Brooks said. One is the value of transparency to companies and users, he said. In China, search engine Baidu has followed the example of members Microsoft and Google by publicly posting a notice when a user tries to access a website banned by the government, he said. Another principle is the place of self-regulation in the fast-changing world of the Internet, where regulation is often too slow to tackle problems, he said. In addition, GNI recognizes that self-regulation doesn’t replace due process and it acknowledges the importance of formal regulation, he said. GNI has only five corporate members so far, 50 members in all, and needs more representation from all constituencies to be better heard, Brooks said. But it has been active in the U.S. debate on the Stop Online Piracy Act in the House, he said. The organization fully recognizes the legitimate need to protect intellectual property rights but urged Congress not to require pro-active monitoring and policing of users’ information because it could set a “dangerous precedent” for other countries, he said. — Dugie