The European Recommendation on the fight against illegal content online

Lawyer Alessandro La Rosa

On the 1st of March, the European Commission adopted a recommendation on measures to effectively monitor illegal content online (“Recommendation”). The main objective of this recommendation is linked to the services of hosting providers, which, as known, play a key role in the enforcement of rights, including copyright, on the Internet: a guideline was already set out by the European Commission in its Communication dated 28 September 2017; with this recommendation, the Commission consolidates the measures taken in the framework of various initiatives.

First of all, a fundamental principle is settled: “what is illegal offline, is illegal online as well”, and therefore any information that is not in accordance with the EU or Member State’s law (both child pornography and infringements of intellectual property rights), if it is illegal in the physical reality, is illegal in digital reality as well.

The Recommendation is a further step forward, as it formally defines the operational measures that should be taken by businesses and Member States, regarding the detection and the removal of illegal content, through reactive or proactive measures (such as the use of automated tools to detect illegal contents). Specifically, it’s reiterated that, according to the rules contained in the E-Commerce Directive (2000/31/EC), Member States may impose a duty of care on hosting service providers, regarding illegal content that they may store (Recommendation, recital 8). While imposing “effective, appropriate and proportionate” measures to impede – and where possible prevent – the stream of illegal content, consideration should be given to all fundamental rights, in particular those guaranteed by the Charter of Fundamental Rights of the European Union, including intellectual property (Recommendation, recital 13), as well as the current status of technological development (Recommendation, recital 14).

The Commission, in accordance with the law cases of the EU Court, has reiterated that hosting service providers can become aware of illegal content independently (“in different ways“) of the alert from the subject involved, and that in the case of a report, the level of accuracy of the report itself should be analysed “in the light of the specific features of each individual case”: it implies that, in the case of infringements of intellectual property rights, the information that may be given to the provider may be significantly different from that required, for example, for the localization of illegal content of another nature (e.g., defamatory content). In order to ensure transparency in the activity of hosting service providers, they should publish, at regular intervals, reports on their activities related to the removal of illegal content or the blocking of the access to it, as well as specific reports to the Commission on their monitoring activities. The desire of Commission is that the fight against illegal content online will be carried out with a “holistic approach“, as such content is often transferred from one hosting service provider to another, which should share experiences, technological solutions and best practices (Recommendation, recital 30). Finally, of considerable importance, is the fact that the Recommendation is also intended to affect the activities of all hosting service providers, regardless of whether they are established in the Union or in a third country, on condition that their activities are directed at consumers resident in the Union.