Public consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy
In its Communication on a Digital Single Market Strategy for Europe adopted on 6th May, the Commission committed to undertake a comprehensive assessment on the role of platforms, covering the social and economic role of online platforms, transparency (e.g. in search results), terms of use, ratings and reviews, the use of information by platforms, the relation between platforms and their suppliers, the conditions of switching between comparable services offered by platforms, and the role of online intermediaries, including ways to tackle illegal content on the internet. It includes also initiatives on data – a free flow of data initiative and a European Cloud initiative.
Online Platforms
Online Platforms (search engines, social media, video sharing websites, app stores, etc.) play an increasingly central role in social and economic life and are an important part of a thriving internet-enabled economy. They bring many benefits to both consumers and suppliers by allowing market participants to exploit the advantages of digitisation and e-commerce. They have also changed the manner in which cultural content is distributed. Increasingly, certain platforms play a more or less active role in making the content available to the public. Proposed definition of online platform refers to a firm operating in two (or multi)-sided markets, which uses the internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups. Certain platforms also qualify as intermediary service providers.
Tackling illegal content online and the liability on online intermediaries
The principle, enshrined in the E-commerce Directive 2000/31, that internet intermediary service providers should not be held liable for the content that they transmit, store or host, as long as they act in a strictly passive manner has underpinned the development of the internet in Europe. It is however not always easy to define the limits on what intermediaries can do with the content that they transmit, store or host before losing the possibility to benefit from the limitations of liability set out in the e-Commerce Directive. In addition, there could be instances where online service providers engaging directly or indirectly in content distribution try to overly rely on the limitations of liability and claim that they are mere hosting providers.
At the same time when illegal content is identified, whether it be information related to illegal activities such as terrorism/child pornography or information that infringes the property rights of others (e.g. copyright, trademarks), intermediaries should take effective action to remove it. Today the disabling of access to and the removal of illegal content by providers of hosting services can slow and complicated while content that is actually legal may be taken down erroneously. Differences in national practices can impede enforcement and undermine users’ confidence. Moreover, there are also differences in the way national courts apply the liability regime to online service providers engaging directly or indirectly in content distribution.
In its DSM Strategy, the Commission announced its intention to analyse the need for new measures to tackle illegal content on the internet, with due regard to their impact on the fundamental right to freedom of expression and information, such as rigorous procedures for removing illegal content while avoiding the take down of legal content, and whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems – a duty of care.