1. MEDIA LAW Copenhagen University SESSION 10 Dirk VOORHOOF Ghent University www.psw.ugent.be/dv (->contact) www.psw.ugent.be/dv

2. Session 10 Illegal/harmful content on the Internet: who’s responsible?

3. Illegal/illicit content on the Internet What is illegal/illicit in the off line world is also illegal/illicit on the internet –Incitement to racism, hatred, violence –(Child)pornography –Defamation –Copyright infringements –Trafficking of drugs, weapons… –Illicit advertising, unfair commercial practices –…

4. Illegal/illicit content on the Internet  What law is applicable?  Which court is competent?  Who’s responsible?

5. Illegal/illicit content on the Internet  EU Directive 2000/31  On certain aspects of information services in particular electronic commerce, in the Internal Market  Directive E-Commerce

6. Directive E Commerce  Development of electronic commerce within information society in EU –Employment –Economic growth –Investment and innovation –Freedom of services internal market

7. Directive E Commerce  PROBLEMS  Obstacles arise from differences in legislation  Uncertainty as to which national rules apply to such services  Uncertainty to which extent member states may control services originating from another member state

8. Directive E Commerce  Aim is to ensure legal certainty and consumer confidence  Problem law application: > immaterial, transnational

9. Directive E Commerce  Free movement of information society services is specific reflection of a more general principle, namely freedom of expression as enshrined in Article 10 (1) of the Convention  Freedom of electronic services subject only to restrictions laid down in par. 2 of Article 10

10. Directive E Commerce (9) “This Directive is not intended to affect national fundamental rules and principles in relation to freedom of expression”

11. Directive E Commerce (10) Aim is proper functioning of internal market and objectives of general interest - protection of minors - human dignity - consumer protection - protection of public health

12. Directive E Commerce  Each member state shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the member state in question (“home state control”)  Member states may not (..) restrict the freedom to provide information society services from another member state - exceptions!!! (art. 3)

13. Directive E Commerce  No prior authorisation (art. 4)  Transparancy obligations (art. 5)  Commercial communications must be clearly identifiable (art. 6)  Measures against unsolicited commercial communication (art. 7) –Identification, opt-out

14. Directive E Commerce  Section 4: Liability of intermediary service providers Article 12-15

15. Directive E Commerce  Section 4: Liability of intermediary service providers, Article 12-15 –Aim to exempt ISP’s from liability under certain conditions –Otherwise: risk of chilling effect –Author??? -> ISP !!! * Compuserve (childpornography, Germany) * Yahoo (incitement to racism, Fr./USA)

16. Directive E Commerce  Section 4: Liability of intermediary service providers, Article 12-15 –Horizontal derogation of liability > CRIMINAL LAW > CIVIL LAW > COMMERCIAL LAW > ADVERTISING LAW/FAIR TRADE PRACTICES > COPYRIGHT LAW

17. Directive E Commerce Art. 12: Mere Conduit = transmission in network, access to network Service provider is NOT LIABLE for the information transmitted, IF a) does not initiate the transmission b) does not select the receiver of the service c) does not select/modify the information contained in the transmission

18. Directive E Commerce Art. 13: Caching = activity of ISP of automatic, intermediate and temporary storage of information for sole purpose of making more efficient the transmission Service provider is NOT LIABLE for the information transmitted, IF a) does not modify the information (..) (..) e) the provider acts expeditiously to remove or to disable access to the information it has stored upon actual knowledge that the initial source has been removed/access has been disabled, or when a court or administrative authority has ordered such removal or disablement

19. Directive E Commerce Art. 14: Hosting = activity of ISP of the storage of information provided by and at request of a recipient of a service Service provider is NOT LIABLE for the information transmitted, IF a) does not have actual knowledge of illegal activity or information b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information (NATD-procedure) (NATD-procedure)

20. Directive E Commerce Art. 15: No general obligation to monitor Member states shall not impose a general obligation on providers to monitor the information which they transmit or store, nor a general obligation to seek actively facts or circumstances indicating illegal activity

21. Directive E Commerce Art. 15: No general obligation to monitor, but Member states may establish obligations for ISP’s promptly to inform competent public authorities of alleged illegal activities or information provided by recipients of their service or obligations to communicate the competent authorities, at their request, information enabling the identification of recipients of their services

22. Directive E Commerce Art. 12-14 Restrictions on liability of ISP’s do not affect the possibility for a court or administrative authority of requiring the ISP to terminate or prevent an infringement (or establishing procedures governing the removal or disabling of access to information)

23. Directive E Commerce Art. 16: Codes of conduct Member states shall encourage - drawing up of codes of conduct at Community level by trade, professional or consumer organisations - esp. codes of conduct regarding the protection of minors and human dignaty