New Dutch Notice-and-Take-Down Code raises questions

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Dutch government and leading market participants have adopted a new
Notice-and-Take-Down Code of Conduct. The Code seeks to clarify the
responsibilities of internet intermediaries (hosting providers in
particular) when confronted with a notice that online information is
punishable (under Dutch penal law) or unlawful. Reactions to the code
are mixed. Many hosting providers have not signed the Code. Others have
called it symbolic. In fact, the Code seems to obscure the current legal
obligations of internet service providers with regard to punishable and
unlawful material. Unfortunately, the Code does not even mention the
right to freedom of expression and the issue of censorship.

Although the code has no legal status, it goes further than the Dutch law in
a number of ways. The Code states that a notice of a public prosecutor
that material is punishable cannot be questioned by a provider, because
the public prosecutor has already established its illegal character.

However, a recent academic study of the Centre for Cybercrime Studies
(Cycris), commissioned by the Dutch government, revealed the inadequacy
of Dutch laws concerning Notice and Takedown. In particular, it found
that the public prosecutor does not have an adequate legal instrument to
order material to be taken down. The study concluded that “there are
insufficient guarantees built into the process to protect the interests
of Internet users and the information freedoms”. The Dutch government
has responded that it is reviewing the relevant laws, but it has
completely ignored the problem in the context of this new Code.

In the case of notices of punishable and unlawful material from others
than the public prosecutor the Code provides that an intermediary will
remove the material if it is ‘unequivocally’ punishable or unlawful. If
not, the party seeking removal can either seek involvement of law
enforcement agencies or start a civil procedure. There is no explicit
mention of a put-back procedure. The Code does state that intermediaries
have to be careful not to remove more content than the notice points to.
The Code does not change the circumstances under which rights holders
can retrieve identifying data of alleged infringers of copyright. For
this reason, BREIN, the representative of the rights holders in the
Netherlands, has made clear it sees the current Code as unsatisfactory.

To complicate matters, the Code introduces the concept of ‘undesirable’
or ‘harmful’ material. It defines this as material that is not illegal
or unlawful under Dutch law, but material that a provider itself does
not want to host, because of its ‘undesirable’ or ‘harmful’ character.
The Code states that the provider is free to develop such criteria and
treat notices of ‘undesirable’ or ‘harmful’ material the same way as
notices of illegal material. Clearly, government involvement in this
part of the Code of Practice is problematic from the perspective of
freedom of expression. The Code does not clarify which categories of
content can legitimately be considered as ‘undesirable’ or ‘harmful’ by
an intermediary. And unfortunately, the Code does not explicitly forbid
law enforcement agencies to send notices of ‘undesirable’ or ‘harmful’
material, whereas such notices would seem to be illegal.

The Code was adopted in the context of the National Infrastructure
Cybercrime, a public private partnership, which includes several branches of
the Dutch Government, major broadband providers such as KPN, XS4all, and
cable providers. There is no official list of participants in the Code.

Notice-And-Take-Down Code of Conduct (9.10.2008)
http://www.samentegencybercrime.nl/UserFiles/File/NTD_Gedragscode_Opmaak_Engels.pdf

Dutch ‘Notice-and-Take-Down’ Code of Conduct issued (14.10.2008)
http://www.saferinternet.org/ww/en/pub/insafe/news/articles/1108/notice_and_take_down.htm

Cycris Research on art. 54a of the Dutch Penal Code (13.05.2008)
http://www.cycris.nl/news/7/39

Hosters en Brein sluiten piraterij-compromis (In Dutch only) (9.10.2008)
http://webwereld.nl/articles/53058/hosters-en-brein-sluiten-piraterij-compromis.html

(Contribution by Joris van Hoboken – EDRi-member Bits of Freedom -Netherlands)