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La Quadrature répond à la consultation européenne sur la directive Internet

La Quadrature du Net a envoyé sa réponse à la consultation de la Commission européenne sur la directive e-Commerce.

(La suite en anglais).

The revision of the 2000 e-Commerce directive (truly an "Internet directive") is very important for the future of rights and freedoms on the Internet, especially its article 12 to 15 which set important principles regarding the legal liability regime of Internet service providers. These provisions directly impact innovation as well as the freedom of expression of Internet users. They are therefore essential to the protection of the Internet's democratizing potential.

The document identifies various issues with the way the directive has been implemented by lawmakers and courts across EU member States, and makes several recommendations on how it should be amended to better protect free speech online.

Regarding the consultation process, we deeply regret that the online form for answering the consultation did not allow citizens to address some of the most crucial questions of the questionnaire, such as question 60 regarding Internet filtering. Moreover, the online form did not allow to focus on just few of the questions of this very long questionnaire.

Although the official deadline (November 5th) is passed, we call on citizens and NGOs to submit their response by the end of the weekend to: markt-e-commerce@ec.europa.eumarkt-e-commerce@ec.europa.eu
We trust that, even late, these will be given full consideration by the Commission. Some advice on how to answer and what questions to focus on here.

Executive Summary

The 2000 e-Commerce directive, which sets a legal framework for most online activities, created a legal security for telecommunication services and even more importantly for host providers through ad hoc liability exemptions (article 12 to 15). By doing so, the directive created a special legal framework distinct from the one regulating traditional media and interpersonal means of communications, and enabled strong innovation and growth in the online sector.

In the past years, however, legislative, administrative as well as judicial decisions have led to diverging interpretations regarding the scope of the liability exemptions granted by the directive. In our opinion, the main reason for these diverging interpretations does not lie in the ambiguity of the provisions in the original directive (though some may need to be adapted to take in account new technologies and uses). Rather, this trend results from a concerted offensive of interests that do not accept the philosophy of the directive. It must be stopped if freedom of expression online is to be protected, and innovation as well as economic growth encouraged.

We substantiate this claim in our answers to the European Commission's consultation.

  • We stress that overcoming the present growing legal uncertainty while preserving the fundamental freedoms will call for a firm reassertion and a new and more detailed formulation for the core principles of the directive. The directive should expand the liability exemptions to new categories of online service providers and create a framework that can accommodate new and still unknown services.
  • In particular, while the provisions regarding the termination of an infringement can probably be clarified without substantial change, the possibility of injunctions for preventing an infringement must be reviewed to make sure that they do not result in a de facto presumption of infringement, in particular in the area of copyright or if they involve filtering systems. Such injunctions will have to be effective, proportionate and correspond to the least restrictive alternative. In general, we take the view that for all online speech, there must be a systematic presumption of freedom of publication.
  • Expeditious procedure can be put in place to prevent the continuation of an infringement in the very rare cases where it is associated with irreparable damages, such as in the case of child pornography. However, even if these cases of very serious criminal offenses, these procedures cannot unilaterally rest on obligations or actions imposed on private parties. To abide by the rule of law, such take-down procedures must at least involve an order from an administrative authority, whose preemptive action must be rapidly followed by confirmation of illegality by an independent and impartial tribunal.
  • In all other cases, notifications to service providers regarding the existence of possibly infringing content should not lead, as is often the case, to a systematic action of removal by the service provider (the host provider should first try to contact the person responsible for the posting of the allegedly illegal information). We suggest different principles to codify take-down procedures and stress that adequate and dissuasive sanctions should be provided in EU law against abusive notifications.
  • In spite of the growing trends to turn Internet service providers in police auxiliaries – whether it is at the national, European or international level (with initiatives such as the Anti-Counterfeiting Trade Agreement) – we urge the Commission to take the opportunity of this long-awaited reform of the e-Commerce directive to protect the fundamental freedoms of citizens, thereby sustaining a legal environment conducive to innovation and growth in the online ecosystem.

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