E-Commerce directive: ensure freedom of expression and due process of law

By EDRi · November 17, 2010

This article is also available in:
Deutsch: [E-Commerce-Richtlinie: Recht auf freie Meinungsäußerung und ordentliches Verfahren sichern | http://www.unwatched.org/node/2355]

EDRi has responded to the public consultation of the European Commission on
Electronic Commerce Directive (2000/31/EC) asking for the revision of the
European regime of intermediaries liability, in view of better guaranteeing
the respect for fundamental rights and the due process of law application on
the Internet.

This consultation, closed on 5 November 2010, aimed at assessing the
implementation of the Directive in Member States, and at identifying
limitations with the current text.

EDRi focuses its answer on the liability regime of the technical
intermediaries set by Articles 12 to 15 of the Directive. This scheme
applies to intermediaries providing access to the Internet as well as
content distribution and hosting. From the users’ perspective, this regime
has a major impact on the level of freedom of expression, freedom of
information, right to privacy and personal data protection on the Internet,
as well as on the due process of law. From the technical intermediaries’
perspective, it must ensure the needed legal certainty to run their

EDRi’s response stresses that the lack of clarity and precision of this
regime does not currently allow adequate protection of human rights and the
rule of law, nor does it ensure legal certainty for intermediaries. In
support of this assertion, EDRi provides examples of concrete situations
having occurred in different countries following the transposition of the
Directive into national laws.

In order for the EU to respect its current obligations with regard to its
own Charter of Fundamental Rights and its upcoming obligations under the
European Convention on Human Rights, EDRi underlines the need to revise the
current intermediaries liability regime as follows:

– Where an intermediary is not hosting the content (acting as a mere
conduit, an access provider or a search engine), it should have no liability
for this content, nor should it have any obligations with regards to the
removal or filtering of this content;

– Where an intermediary acts as a hosting provider, its liability with
respect to the content hosted should be restricted to its lack of compliance
with a court order to take down this content;

– Intermediaries should have no obligation to monitor content;

– Services and activities currently not addressed by the Directive (search
engines, web2.0 services, hypertext links) should also benefit from the same
limited liability regime.

Details on all these issues are provided in the EDRi response.

EDRI response to the consultation on the E-Commerce Directive (5.11.2010)

European Commission public consultation on the E-Commerce Directive

Article 19 response to the consultation on the E-Commerce Directive

(Contribution by Meryem Marzouki, EDRi-member IRIS – France)