The way the law stands today in the United States, EU, and most other developed countries, copyright holders must wait for content to appear online before sending targeted takedown notices to hosts, service providers, and online platforms.
After sending several billion of these notices, patience is wearing thin, so a new plan is beginning to emerge. Rather than taking down content after it appears, major entertainment industry groups would prefer companies to take proactive action. The upload filters currently under discussion in Europe are a prime example but are already causing controversy.
Continuing the momentum in this direction, Reuters reports that the European Union will publish draft guidelines at the end of this month, urging platforms such as Google and Facebook to take a more proactive approach to illegal content of all kinds.
“Online platforms need to significantly step up their actions to address this problem,” the draft EU guidelines say.
“They need to be proactive in weeding out illegal content, put effective notice-and-action procedures in place, and establish well-functioning interfaces with third parties (such as trusted flaggers) and give a particular priority to notifications from national law enforcement authorities.”
On the copyright front, Google already operates interfaces designed to take down infringing content. And, as the recent agreement in the UK with copyright holders shows, is also prepared to make infringing content harder to find. Nevertheless, it will remain to be seen if Google is prepared to give even ‘trusted’ third-parties a veto on what content can appear online, without having oversight itself.
The guidelines are reportedly non-binding but further legislation in this area isn’t being ruled out for Spring 2018, if companies fail to make significant progress.
Interestingly, however, a Commission source told Reuters that any new legislation would not “change the liability exemption for online platforms.” Maintaining these so-called ‘safe harbors’ is a priority for online giants such as Google and Facebook – anything less would almost certainly be a deal-breaker.
The guidelines, due to be published at the end of September, will also encourage online platforms to publish transparency reports. These should detail the volume of notices received and actions subsequently taken. Again, Google is way ahead of the game here, having published this kind of data for the past several years.
“The guidelines also contain safeguards against excessive removal of content, such as giving its owners a right to contest such a decision,” Reuters adds.
More will be known about the proposals in a couple of weeks but it’s quite likely they’ll spark another round of debate on whether legislation is the best route to tackle illegal content or whether voluntary agreements – which have a tendency to be rather less open – should be the way to go.