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Call for safeguard in tackling online piracy

October 28, 2020

By Colin Mann

Trade body EDiMA, which represents leading Internet companies, has called for the introduction of a legal safeguard to enhance their ability to tackle illegal content online within the EU’s Digital Services Act.

The association is calling for the introduction of a legal safeguard which would allow companies to take proactive actions to remove illegal content and activity from their services, without the risk of additional liability for those attempts to tackle illegal content.

Current EU rules lack this crucial provision, which EDiMA says has a “chilling” effect on service providers who want to do more to tackle illegal activity online.

“All of our members take their responsibility very seriously and want to do more to tackle illegal content and activity online,” asserted Siada El Ramly, Director General of EDiMA. “A European legal safeguard for service providers would give them the leeway to use their resources and technology in creative ways in order to do so.”

In the US, the ‘Good Samaritan’ principle allows service providers to take measures to address illegal and harmful content without incurring liability – however this principle is often viewed as a carte blanche for service providers to overact on content that is not strictly illegal. What EDiMA proposes is a safeguard that is based clearly on EU law and subject to European oversight.

In this latest paper in its Online Responsibility Framework Series, the association of 19 leading Internet companies outlines a number of important distinctions between the  legal safeguard they are advocating for and the US Good Samaritan Principle. These include that its implementation should be subject to oversight for ‘overaction’, in order to protect the European principle of freedom of expression.

“The EU approach to the freedom of expression is different to that of the US, so our approach to moderating content online must be different also,” suggested El Ramly. “Our proposal is based on European values and laws and sets clear limits to the legal safeguard for service providers in order to protect the freedom of expression and to prevent overaction by service providers.”

The paper recommends the introduction of additional new safeguards for service providers and for users, including minimum information levels in notices of illegal content and the requirement for a human review of appeals of removal of content. The paper acknowledges the need for an appropriate governance structure to manage these provisions and EDiMA will detail potential approaches to governance in the final paper in its Online Responsibility Framework series, to be published in November 2020.

“What we are proposing is something novel and it is testament to the commitment of the members of EDiMA to do more to tackle illegal content online and to engage constructively,” declared El Ramly. “We all have a responsibility to bring forward solutions and a legal safeguard to better tackle illegal content online is a strong one.”

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