ETNO response to the European Commission Public Consultation on measures to further improve the effectiveness of the fight against illegal content online

ETNO welcomes this opportunity to comment on the public consultation “on measures to further improve the effectiveness of the fight against illegal content online” launched by the European Commission, which follows in the footsteps of the Commission Communication of September 2017 and the Recommendation of March 2018. Our Association recognises the need to work towards an online environment respecting – to the fullest possible extent – the applicable legal requirements and, with this aim, to further address availability and proliferation of illegal content online.

ETNO would like to provide the Commission with its views to this debate. European telecommunications operators can look back at a long lasting and remain involved in a continued engagement in the endeavour to fight illegal content online, not least regarding in their capacity as intermediary service providers.

Drawing on this experience, ETNO would like to stress the following key messages:

• The internet has developed organically over the last decades and is now subject to both general regulation and, where this has not been sufficiently targeted, specific regulation. Examples are the E-Commerce Directive (“ECD”), the Intellectual Property Rights Enforcement Directive (“IPRED”) and national as well as EU legislation to address terrorism, child protection, online fraud etc. Several successful self-regulatory measures and/or MoU at national as well as EU level complement these legislative frameworks. An assessment of objectives and a listing of risks to be addressed with priority as well as (best practice) instruments to achieve these aims seems to be an important step to be undertaken in the first place.
• A proportionate approach needs to be maintained, aimed at striking the right balance between the need to guarantee a legally sound online environment, the development of innovative services and the respect of fundamental rights.
• Ensuring legal certainty and a fair collaboration amongst stakeholders, each according to their role, are key aspects.
• Intermediary service providers in particular should in no case replace the judicial authorities in establishing the legality/illegality of conduct or content that has been notified as being allegedly illegal. This would imply taking up a role and responsibilities that intermediaries cannot assume. These service providers should act to remove or disable access to the content only upon a competent authority’s decision.
• The ECD has proven to be a flexible and effective instrument. It is a corner stone for ensuring innovation in the digital economy. Article 15 of ECD is a fundamental provision to the proportionate balancing of rights and core to the continued provision of digital economy services.
• However, it is crucial to make a distinction between the roles of the different players in the value chain: some intermediaries play a "passive role" (e.g. internet access service providers and cloud hosting providers), while others play an active role by prioritising and organising content. And therefore, ETNO agrees with some kind of targeted measures on certain hosting platforms which do not perform a neutral role in distributing and giving access to illegal content online.
• There are huge differences between various unlawful activities/content that can be found online, and the related social value and economic impact. There cannot be a ‘one size fits all’ solution.
• As regards those new agents who use business models that allow accessing illegal content; it may be scope for some kind of voluntary agreements between all the agents involved in the value chain and ratified by the Competent Authorities. It is essential that any action taken under these voluntary agreements is proportionate and necessary to achieve the objectives pursued and maintain a balance between all the fundamental rights involved.

Full document available in PDF here. 

Response document available in PDF here.