MEDIA LAW Copenhagen University SESSION 10 Dirk VOORHOOF Ghent University (->contact) .

MEDIA LAWMEDIA LAWCopenhagen UniversityCopenhagen University

SESSION 10SESSION 10

Dirk VOORHOOFDirk VOORHOOFGhent UniversityGhent University

www.psw.ugent.be/dvwww.psw.ugent.be/dv (->contact)(->contact)

Session 10Session 10

Illegal/harmful content Illegal/harmful content

on the Internet:on the Internet:

who’s responsible?who’s responsible?

Illegal/illicit content on the InternetIllegal/illicit content on the Internet

What is illegal/illicit in the off line What is illegal/illicit in the off line world is also illegal/illicit on the world is also illegal/illicit on the internetinternet

– Incitement to racism, hatred, violenceIncitement to racism, hatred, violence– (Child)pornography(Child)pornography– DefamationDefamation– Copyright infringementsCopyright infringements– Trafficking of drugs, weapons…Trafficking of drugs, weapons…– Illicit advertising, unfair commercial Illicit advertising, unfair commercial

practicespractices– ……

Illegal/illicit content Illegal/illicit content on the Interneton the Internet

What law is What law is applicable?applicable?

Which court is Which court is competent?competent?

Who’s responsible?Who’s responsible?

Illegal/illicit content Illegal/illicit content on the Interneton the Internet

EU Directive 2000/31EU Directive 2000/31

On certain aspects of On certain aspects of information services in information services in particular electronic particular electronic commerce, in the commerce, in the Internal MarketInternal Market

Directive E-CommerceDirective E-Commerce

Directive E CommerceDirective E Commerce

Development of electronic commerce Development of electronic commerce within information society in EUwithin information society in EU

– EmploymentEmployment– Economic growthEconomic growth– Investment and innovationInvestment and innovation– Freedom of services internal marketFreedom of services internal market


PROBLEMSPROBLEMS

Obstacles arise from differences in legislationObstacles arise from differences in legislation

Uncertainty as to which national rules apply to such Uncertainty as to which national rules apply to such servicesservices

Uncertainty to which extent member states may Uncertainty to which extent member states may control services originating from another member control services originating from another member statestate


Aim is to ensure legal certaintyAim is to ensure legal certaintyand consumer confidenceand consumer confidence

Problem law application:Problem law application:

> immaterial, transnational> immaterial, transnational


Free movement of information society Free movement of information society services is specific reflection of a more services is specific reflection of a more general principle,general principle,namely freedom of expressionnamely freedom of expression as as enshrined in Article 10 (1) of the enshrined in Article 10 (1) of the ConventionConvention

Freedom of electronic services subject Freedom of electronic services subject only to only to restrictionsrestrictions laid down in par. 2 of laid down in par. 2 of Article 10Article 10


(9)(9)

““This Directive is not intended to affect This Directive is not intended to affect national fundamental rules and principles national fundamental rules and principles in relation to freedom of expression”in relation to freedom of expression”


(10)(10)

Aim is proper functioning of internal marketAim is proper functioning of internal market

and objectives of general interestand objectives of general interest

- protection of minors- protection of minors- human dignity- human dignity- consumer protection- consumer protection

- protection of public health- protection of public health


Each member state shall ensure that the Each member state shall ensure that the information society services provided by information society services provided by a service provider established on its a service provider established on its territory territory comply with the national comply with the national provisionsprovisions applicable in the member applicable in the member state in question (“state in question (“home state controlhome state control”)”)

Member states may not (..) restrict the Member states may not (..) restrict the freedom to provide information freedom to provide information society services from another society services from another member statemember state

- exceptions!!! (art. 3)- exceptions!!! (art. 3)


No prior authorisation (art. 4)No prior authorisation (art. 4) Transparancy obligations (art. 5)Transparancy obligations (art. 5)

Commercial communications must Commercial communications must be clearly identifiable (art. 6)be clearly identifiable (art. 6)

Measures against unsolicited Measures against unsolicited commercial communication (art. 7)commercial communication (art. 7)– Identification, opt-outIdentification, opt-out


Section 4: Liability Section 4: Liability of intermediary of intermediary service providersservice providersArticle 12-15Article 12-15


Section 4: Liability of intermediary service Section 4: Liability of intermediary service providers, Article 12-15providers, Article 12-15

– Aim to exempt ISP’s from liability under Aim to exempt ISP’s from liability under certain conditionscertain conditions

– Otherwise: risk of chilling effectOtherwise: risk of chilling effect– Author??? -> ISP !!!Author??? -> ISP !!!

* Compuserve (childpornography, Germany)* Compuserve (childpornography, Germany)* Yahoo (incitement to racism, Fr./USA)* Yahoo (incitement to racism, Fr./USA)


Section 4: Liability of intermediary service Section 4: Liability of intermediary service providers, Article 12-15providers, Article 12-15

– HorizontalHorizontal derogation of liability derogation of liability> CRIMINAL LAW> CRIMINAL LAW> CIVIL LAW> CIVIL LAW> COMMERCIAL LAW> COMMERCIAL LAW> ADVERTISING LAW/FAIR TRADE > ADVERTISING LAW/FAIR TRADE

PRACTICESPRACTICES> COPYRIGHT LAW> COPYRIGHT LAW


Art. 12: Mere ConduitArt. 12: Mere Conduit

= transmission in network, access to network= transmission in network, access to network

Service provider is NOT LIABLEService provider is NOT LIABLE for the for the information transmitted, information transmitted, IFIFa) does not initiate the transmissiona) does not initiate the transmission

b) does not select the receiver of the service b) does not select the receiver of the service

c) does not select/modify the informationc) does not select/modify the information contained in the transmission contained in the transmission

Directive E CommerceDirective E CommerceArt. 13: CachingArt. 13: Caching

= activity of ISP of automatic, intermediate and = activity of ISP of automatic, intermediate and temporary storage of information for sole purpose temporary storage of information for sole purpose of making more efficient the transmissionof making more efficient the transmission

Service provider is NOT LIABLEService provider is NOT LIABLE for the for the information transmitted, information transmitted, IFIFa) does not modify the informationa) does not modify the information (..)(..)e) the provider acts expeditiously to remove or to e) the provider acts expeditiously to remove or to disable access to the information it has stored disable access to the information it has stored upon upon actual knowledgeactual knowledge that the that the initial sourceinitial source has been removed/access has been disabled, or has been removed/access has been disabled, or when a when a court or administrative authoritycourt or administrative authority has has ordered such removal or disablementordered such removal or disablement

Directive E CommerceDirective E CommerceArt. 14: HostingArt. 14: Hosting

= activity of ISP of the storage of information = activity of ISP of the storage of information provided by and at request of a recipient of a provided by and at request of a recipient of a serviceservice

Service provider is NOT LIABLEService provider is NOT LIABLE for the for the information transmitted, information transmitted, IFIFa) does not have actual knowledge of illegal a) does not have actual knowledge of illegal activity or informationactivity or informationb) the provider, upon obtaining such knowledge or b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to awareness, acts expeditiously to remove or to disable access to the informationdisable access to the information

(NATD-procedure)(NATD-procedure)


Art. 15: No general Art. 15: No general obligation to obligation to monitormonitor

Member states shall not Member states shall not impose a general impose a general obligation on providers to obligation on providers to monitor the information monitor the information which they transmit or which they transmit or store, nor a general store, nor a general obligation to seek actively obligation to seek actively facts or circumstances facts or circumstances indicating illegal activityindicating illegal activity


Art. 15: No general obligation to Art. 15: No general obligation to monitor, butmonitor, but

Member states may establish obligations for Member states may establish obligations for ISP’s promptly ISP’s promptly to informto inform competent public competent public authorities of alleged illegal activities or authorities of alleged illegal activities or information provided by recipients of their information provided by recipients of their service or obligations to communicate the service or obligations to communicate the competent authorities, at their request, competent authorities, at their request, information enabling the information enabling the identificationidentification of of recipients of their servicesrecipients of their services


Art. 12-14Art. 12-14

Restrictions on liability of ISP’s do not Restrictions on liability of ISP’s do not affect the possibility for a court or affect the possibility for a court or administrative authority of requiring administrative authority of requiring the ISP to terminate or prevent an the ISP to terminate or prevent an infringement (or establishing infringement (or establishing procedures governing the removal or procedures governing the removal or disabling of access to information)disabling of access to information)


Art. 16: Codes of conductArt. 16: Codes of conduct

Member states shall encourageMember states shall encourage

- drawing up of codes of conduct at - drawing up of codes of conduct at Community level by trade, professional or Community level by trade, professional or consumer organisationsconsumer organisations

- esp. codes of conduct regarding the - esp. codes of conduct regarding the protection of minors and human dignatyprotection of minors and human dignaty

MEDIA LAW Copenhagen University SESSION 10 Dirk VOORHOOF Ghent University (->contact) .

Documents

directive e commerce

directive e commerce

member state slide

transnational slide

freedom of expression

internet eu directive

public health slide

particular electronic