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Prohibition of general monitoring obligations and stay-down injunctions in light of the proportionality requirement: a European and comparative study

Final Report Summary - STAY-DOWN (Prohibition of general monitoring obligations and stay-down injunctions in light of the proportionality requirement: a European and comparative study)

The project's aim is to analyse the relationship between the prohibition on Internet intermediaries of general monitoring obligations established by the E-Commerce Directive and the permanent removal of illegal content from the Internet (known as “stay-down” orders). Intermediaries such as Internet hosting providers have an obligation to remove or disable access to illegal content once they obtain knowledge or awareness of the illegality of the hosted content. However, the measures that prevent the further impairment of rights (permanent removal) cannot be based on general monitoring obligations, as clearly established by art. 15 E-Commerce Directive. This situation clearly creates a tension that has repeatedly arisen to the European Court of Justice in cases such as Ebay, Scarlet, Netlog and Telekabel, where the Court has tried to address the different fundamental rights involved.
The results obtained show the importance of maintaining online intermediaries exempt from secondary liability claims for the infringing content uploaded by their users, provided that they act “neutrally”. This allocation of liability is essential to favour technological development, the freedom to conduct a business and the free expression of users on the Internet. It is also “dissuasive” inasmuch as right holders have access to the “measures” intended to stop the infringement of their rights (injunctions) when they appropriately inform the intermediaries. Finally, it is “proportionate” in the sense that allows users to express themselves freely on online platforms, which are becoming a standard tools to express the ideas and the creativity of increasingly larger sections of population. The results of this second and last reporting period confirm that courts should maintain a strong balance between the different stake holders and interests involved, namely: right holders (property and intellectual property rights), online intermediaries (right to conduct a business and technological development) and users (freedom of expression and bottom-up creative initiatives). Only a fair balance that takes into account all the three types of stake holders and their (fundamental) rights can ensure a fair and proportionate development of the digital economy and creativity in an information society.
These findings are not only addressed to courts but also to EU and MS legislators and policy-makers given the attention to the liability structure of online intermediaries that the Commission has recently given to this sector, mirroring the growing international debate. In particular, in the recent draft of a new copyright Directive the EC seems to have introduced in a legislative instrument some of the aspects identified in another set of results found by this project and detailed below.
These additional results indicated a trend that is threatening to subvert the delicate equilibrium just described. This trend can be defined as “privatised enforcement” and is based on private agreements favoured but not generally sanctioned or verified by legislators and/or regulatory bodies between intermediaries and right holders to implement methods (usually automated methods) to quickly remove allegedly infringing content from the Internet. These private agreements between right holders and intermediaries leave out from the equation of digital platform dynamics a key subject: users and their rights and legitimate interests. Private agreements, while certainly definable as dissuasive and effective as they enable the removal of much more information much more quickly, are certainly not conducive to a proportionate solution. Available data show that a lot of legitimate information is removed by this automated procedures. The last part of this project investigated this trend towards a “privatised enforcement” of rights on the Internet and how this new allocation of liability agreed at the margins of the policy debate and political decision making process has the potential to affect fundamental rights such as property, intellectual property, freedom to conduct a business and freedom of expression in the EU.
Regarding the researcher in charge, after the first two years of activity spent as Senior Researcher he moved to a permanent Lectureship in Law for one year, and now to a Senior Lectureship in Intellectual Property and Internet Law where he also directs the LLM (Masters programme in Law) in Copyright and the Digital Economy. Additionally, he is a Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard Law School.