Draft consultation on online platforms leaked: does the EU really want ISPs to do (much) more?

IPKat readers will promptly recall not only that last May the EU Commission unveiled its Digital Single Market Strategy (DSMS) [here and here], but also that - as far as copyright is concerned - proposed areas of interventions included: (1) allowing content portability and preventing geoblocking; (2) introducing a text and data mining exception for commercial and non-commercial uses alike; and (3) having a discussion on the role and responsibilities of online platforms and internet service providers (ISPs) to tackle infringing content.

Now it seems that things have started moving a bit, at least in relation to geoblocking and the debate around online platforms and ISPs, bearing in mind that both go beyond the sole realm of copyright and encompass a number of other/broader issues. All this without forgetting - of course - that relevant Commissioners, notably Günther H. Oettinger, are also constantly and actively engaged in the relevant debate by issuing (somehow at times cryptical) statements.

A few days ago the Commission launched of a public consultation [here] on the possible review of the Satellite and Cable Directive. This, together with the parallel ongoing PayTV investigation in the area of competition law, may be central to the policy objective of getting rid of geo-blocking.

By the end of September the Commission is also likely to launch a public consultation on: (a) the regulatory environment for platforms; (b) ISP liability; (c) data and cloud computing; and (d) the collaborative economy. 

The perfect host

If you thought that it would be too hard - if not impossible - to wait until the official launch for the latter consultation, do not worry, because a couple of days ago Politico leaked a draft version of its text.

As explained in the introduction, the 92 questions in the draft consultation encompass the social and economic role of online platforms, transparency (eg in search results) [without forgetting that also this is an issue currently being investigated by the Commission from a competition law perspective], terms of use, ratings and reviews, the use of information by platforms the relation between platforms and their suppliers, the conditions of switching between comparable services offered by platforms, and the role of online intermediaries, including ways to tackle unlawful content on the internet.

The questions asked in relation to (a) and (b) above are particularly interesting from an IP perspective.

As regards online platforms, among other things (eg whether one agrees or not with the definition of relevant terms) the draft consultation poses "the question of whether platforms engaging directly or indirectly in content distribution rely on the limitation of liability [the Commission may seem to have in mind in particular video-sharing websites: see Q24] provided under article 14 of the E-commerce directive to not take or negotiate licences with the holders of rights in digital content" (p 5).

Who's to blame?

As explained by the Commission, difficulties in this respect could also arise "where online service providers engaging directly or indirectly in content distribution try to overly rely on the limitations of liability and claim that they are mere hosting providers" (p12). All this calls into consideration the distinction drawn by the Court of Justice of the European Union and courts in EU Member States alike between active and passive providers [for recent applications at the level of national courts, see here, here and here]. 

A further point raised by the Commission (still at p12), is that: 

Today the disabling of access to and the removal of illegal content [while this term is specifically defined nowhere at the legislative level, the Commission proposes to understand it broadly, "so as to include any infringement of applicable EU or national laws and regulations"] by providers of hosting services can be slow and complicated while content that is actually legal may be taken down erroneously. Differences in national practices [can these also depend on the fact that enforcement and liability regimes have been established by EU directives, as opposed to say EU regulations, that employ a language that has left Member States a relatively high degree of discretion at the national implementation stage?] can impede enforcement and undermine users' confidence. Moreover, there are also differences in the way national courts apply the liability regime [but also the types of remedies available to rightholders] to online service providers engaging directly or indirectly in content distribution." 

Expert in safe harbour (naps)

The questions posed look all interesting and with potentially broad implications for the current legislative framework, including in particular:

- Q26, seeking feedback as to whether further categories of ISPs should be established in addition to mere conduit - caching - hosting, or existing categories should be further defined, eg to address the particular liability regime of linking providers and search engines; and

- Q27, asking about notice-and-takedown regimes, including an EU-wide system of notice-and-takedown.

- Q30 to Q33, concerning the duty of care of ISPs.

Let's now wait for the official launch of the consultation to see whether those appearing in the draft will be the same questions on which the Commission will seek a feedback from relevant stakeholder to (possibly) orientate its policy action.