E-Commerce directive: ensure freedom of expression and due process of law

EDRi has responded to the public consultation of the European Commission on Electronic Commerce Directive (2000/31/EC). This consultation, closed on 5 November 2010, aimed at assessing the implementation of the Directive in Member States, and at identifying limitations with the current text.
EDRi focuses its answer on the liability regime of the technical intermediaries set by Articles 12 to 15 of the Directive. This scheme applies to intermediaries providing access to the Internet as well as content distribution and hosting. From the users' perspective, this regime has a major impact on the level of freedom of expression, freedom of information, right to privacy and personal data protection on the Internet, as well as on the due process of law. From the technical intermediaries' perspective, it must ensure the needed legal certainty to run their activities.
EDRi's response stresses that the lack of clarity and precision of this regime does not currently allow adequate protection of human rights and the rule of law, nor does it ensure legal certainty for intermediaries. In support of this assertion, EDRi provides examples of concrete situations having occurred in different countries following the transposition of the Directive into national laws.
In order for the EU to respect its current obligations with regard to its own Charter of Fundamental Rights and its upcoming obligations under the European Convention on Human Rights, EDRi underlines the need to revise the current intermediaries liability regime as follows:
- Where an intermediary is not hosting the content (acting as a mere conduit, an access provider or a search engine), it should have no liability for this content, nor should it have any obligations with regards to the
removal or filtering of this content;
- Where an intermediary acts as a hosting provider, its liability with respect to the content hosted should be restricted to its lack of compliance with a court order to take down this content;
- Intermediaries should have no obligation to monitor content;
- Services and activities currently not addressed by the Directive (search engines, web2.0 services, hypertext links) should also benefit from the same limited liability regime.