By Aleksandra Kuczerawy
The European Commission is encouraging Internet intermediaries to take up more proactive stance in fighting illegal content online. Voluntary measures may lead, however, to the loss of a liability exemption offered by the E-Commerce Directive. The Commission attempts to convince the intermediaries that this would not be the case, and discusses the need to introduce the Good Samaritan protection in the EU.
Intermediary liability under the E-Commerce Directive
Article 14 of the E-Commerce Directive (2000/31) contains a conditional liability exemption for one type of intermediaries, the hosting providers. Under this provision, hosting service providers can benefit from a liability exemption provided they 1) do not have actual knowledge of illegal activity or information and, as regards claims for damages, are not aware of facts or circumstances from which the illegal activity or information is apparent; 2) upon obtaining such knowledge or awareness, they act expeditiously to remove or to disable access to the information. This provision constitutes the legal basis of notice and take down mechanisms in the EU countries. At the same time, Article 15 of the E-Commerce Directive prohibits States from introducing general monitoring obligations for intermediaries. Specific monitoring obligations are allowed. Moreover, voluntary monitoring on the intermediaries’ own initiative is also allowed. Voluntary monitoring, however, may be tricky because it could lead to awareness of facts or circumstances from which the illegal activity or information is apparent, and therefore to obtaining constructive knowledge (see more here). It could, in other words, result in loss of the liability exemption for hosting providers.
The EC Communication on Tackling Illegal Content
Hosting providers may genuinely wish to take proactive steps to detect, remove or disable access to illegal content as part of their service provision. The EC, in recent years, is actively encouraging hosting providers to engage in such voluntary monitoring, for example in the 2016 Code of Conduct, the 2017 Communication on Tackling Illegal Content, or the 2018 Recommendation on Measures to Effectively Tackle Illegal Content Online. The 2017 Communication aimed to clarify hosting providers’ liability when they undertake proactive measures, referring to such measures as ‘so-called “Good Samaritan” actions’. Interestingly, the EC argued that the taking of voluntary, proactive measures does not automatically lead to losing the benefit of the liability exemption provided for in Article 14 of the E-Commerce Directive.
According to the EC, proactive measures taken by hosting providers to detect and remove illegal content may indeed result in obtaining knowledge or awareness of illegal activities or illegal information, which could lead to the loss of the liability exemption. However, the EC argues, in such cases the hosting provider ‘continues to have the possibility to act expeditiously to remove or to disable access to the information in question upon obtaining such knowledge or awareness’. If the hosting provider does so, he continues to benefit from the liability exemption, therefore, he should not be concerned about implementing proactive voluntary measures.
Good Samaritan Protection or What?
The interpretation of Article 14 of the E-Commerce Directive presented by the EC is interesting, but somewhat confusing and perhaps even misleading. The EC argues that hosting providers should not worry about losing the immunity because under Article 14 they already have an obligation to act expeditiously when they obtain knowledge or awareness. This includes situations when the knowledge or awareness is obtained ‘as the result of an investigation undertaken on its own initiative’, as observed by the CJEU in L’Oréal v. eBay. The fact that hosting providers can “choose” whether to act (upon obtaining knowledge) in order to maintain the immunity, according to the EC, is equivalent with the continuous benefit from the liability exemption. In other words, the EC attempts to convince hosting providers that they will not lose the protection – as long as they act according to the expectations of policy makers. The conditional character of the immunity is omitted in its argumentation. Moreover, the EC overlooks the difference in scale between the situation when hosting providers stumble upon illegal content occasionally, and when they would regularly find illegal content as a result of using proactive measures. After all, the more they look, the more they will find. The chances of overlooking a particular illegality, and therefore the risk of liability, grow significantly.
Protection of “Good Samaritans” originates from US Section 230(c)(2) of the Communications Decency Act (CDA), which states that online service providers shall not be held liable based on ‘any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected (…)‘.The proposed EC interpretation, however, is not a “true” Good Samaritan protection, at least not in the meaning of Section 230 CDA. This is because Section 230 CDA protects intermediaries when they take any voluntarily measures to restrict access to or availability of certain content but also, and most importantly, when they miss such content and do not take any action at all. After all, the specific purpose for introducing this section was to overrule Stratton-Oakmont v. Prodigy, where an online service provider was found liable for defamatory content by third parties, because it had tried to detect and remove objectionable content but had failed to do so entirely.
Good Samaritan 0.5
The Good Samaritan protection in Section 230 CDA has several disadvantages. Mainly, it provides no effective remedy to complainants whose rights were infringed while at the same time encourages excessive take-downs on the intermediary’s own initiative. It does, however, clarify that intermediaries will not be punished if they make their best effort to moderate content but fail to detect all instances of undesirable content. By providing this assurance, the US Congress effectively encouraged intermediaries to implement proactive measures.(*)
The argumentation of the EC offers only half of the Good Samaritan protection – intermediaries in the EU will not lose the immunity if they take voluntary action resulting in the removal of unlawful or infringing content, but there is no protection if they fail to do so. It will be interesting to see whether the EC will continue advocating for this approach. If so, it should be clear that the proposed approach, whatever it is, is not the Good Samaritan protection.
(*) It should be mentioned that Congress recently passed a sex trafficking exception to Section 230’s immunity (the Fight Online Sex Trafficking Act of 2017 – FOSTA). The new law has been criticized extensively (see here, here and here) for eviscerating Section 230. Its true impact on the Good Samaritan protection remains to be seen.
Aleksandra Kuczerawy is a legal researcher at KU Leuven CiTiP – imec. Her research focuses on freedom of expression, intermediary liability, privacy and data protection. You can follow her on Twitter: @AlexandraQu
This article was originally published on KU Leuven’s CiTiP blog. Republished here with permission.