European Parliament steps back from promoting ISP liability

By EDRi · September 26, 2012

This article is also available in:
Deutsch: [Europäisches Parlament distanziert sich von der Providerhaftung |]

On 11 September 2012, the European Parliament voted on an own-initiative
report of Mr Jean-Marie Cavada (EPP, France) on the online distribution
of audiovisual works.

As we reported in the EDRi-gram after the vote in the leading Committee,
the Culture and Education Committee, last July, the report was
containing some surprising and potentially very problematic terms on the
liability of networks operators. The text was calling for “ways to
encourage network operators to standardise their technical tools” for
copyright enforcement and arguing that the current trend was towards a
removal of liability of networks operators. This is factually wrong,
could lead to privatisation of censorship and would encourage
enforcement outside the rule of law. Finally, this is in no way pursuing
the goal of the report, which is to promote and develop access to
cultural content.

This problematic part of the report (point 59 of the final report) was
thankfully rejected in the final vote of the European Parliament on the
dossier following a lot of behind the scenes activity by

This vote is important for three reasons.

Firstly, the European Parliament would have faced difficulties
convincing the other institutions of its credibility on the dossier. A
report containing (obviously) inaccurate statements will not be
particularly credible.

Secondly, encouraging network operators to standardise their “technical
tools” means encouraging Internet service providers to monitor, filter
and possibly block access to content. This call was going against recent
decisions of the Court of Justice of the European Union that protecting
intellectual property could not override other fundamental rights such
as the right to privacy, the freedom of information and the freedom to
conduct business. (C-70/10 Scarlet/SABAM and C-360/10 SABAM/Netlog). The
mix of “technical tools” creates the motive, means and opportunity for
Internet companies to appoint themselves as the judge, jury and
executioner of online law enforcement.

Finally, and most importantly, it shows the willingness of the European
Parliament to move away from concentrating all intellectual property
related issues on enforcement – particularly privatised enforcement by
Internet companies. It is a clear reversal of the Parliament’s previous
approach in the so-called “Gallo report” adopted by the European
Parliament in 2010 that demanded “appropriate solutions” from
Internet Service Providers in “dialogue” with stakeholders. One such
“dialogue” was the one convened by the European Commission, which
suggested the “voluntary” implementation of exactly the kinds of
filtering systems that the European Court of Justice subsequently ruled
to be in breach of citizens’ fundamental rights.

This vote is in tune with the recently adopted Opinion of the Industry
Committee of the European Parliament on Completing Digital Single
Market, led by Italian Conservative Parliamentarian Aldo Patriciello. In
that report, Parliamentarians focussed on eliminating the many barriers
to online services in Europe, demanding in particular “a harmonised
approach to copyright exceptions and limitations”. This reflects a
growing awareness that it is time to move away from trying to use
disproportionate tools to enforce a copyright system that is devoid of
credibility and towards building a more credible approach.

The road will still be long to adapt the current framework to the
digital revolution and to overcome the barriers that prevent consumers
to access, use and enjoy cultural content but the European Parliament
has made it clear that it was the direction it wanted to take.

EDRi-gram: EP: Surprises in the online distribution of audiovisual
works’ report (18.07.2012)

Patriciello Opinion
Not yet published by Parliament

Cavada Report (25.07.2012)

Gallo Report (22.10.2012)

(Contribution by Marie Humeau – EDRi)