illegal content / Internet intermediaries

Internet intermediaries: How are you? What do you do? What the European Commission has to say


While waiting to discuss with representatives of the European Commission at the first iCLIC Conference this week the implications of its Digital Single Market Strategy for Europe – as well as waiting for the issuing of the Commission’s forthcoming ‘public consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’ about to be published [already leaked by Politico here] – it is worth asking the question again ‘what is an Internet intermediary?’ Or, to use the language of the Commission, ‘what is an “Intermediary Service Provider” (abbreviated ‘ISP’)?’

Rather confusingly, the latter term should not be mistaken for the term “Internet Service Provider”, also abbreviated ‘ISP’ in the literature of the field, but which usually covers a narrower set of actors: those who provide Internet access to users, plus other bundled services such as email services. Why ask this question again? To beg the Commission to streamline the vocabulary of future European legislation or measures.

Page 5 of the leaked consultation defines” Intermediary service providers” or, as it also refers to them, “information society service providers” [are these two terms really the same thing?] in the following way:

““(Intermediary service providers” or “information society service providers” provide online services (or information society services as defined by the E-commerce Directive) that consist of transmitting or storing content that has been provided by a third party. The E-commerce distinguishes three types of intermediary services: mere conduit (transmitting of data by an internet access provider), caching (i.e. automatically making temporary copies of web data to speed up technical processes) and hosting.”

However, this is not the sole definition to be found in the Commission’s documents. ‘Online platform’ is the latest definition it has put forward in referring to a distinct online entity concept, which it introduced in the Commission’s Communication of 6 May 2015 p. 11: “Online platform” refers to a firm operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups”.

Among this new group of ‘fancy’ people, one finds:

  • General search engines
  • Specialised search tools
  • Maps
  • News aggregators
  • Online market places
  • Audio-visual and music platforms
  • Video sharing platforms
  • Payment systems
  • Social networks
  • App stores
  • Or collaborative economy platforms.

Interestingly, the category of ‘online platforms’ and mere conduits (see a previous post on mere conduits) do not seem to overlap under the European Commission’s definition as ‘Internet access providers’ are not included in its examples of entities that fit within this role.

Why using a new term? Well, it seems that here the Commission’s purpose is to justify a reduction of the scope of the liability exemptions to be found at Articles 12 to 15 of the E-commerce Directive and in particular Article 14. Indeed, just after the definition of online platforms in its consultation document, one finds the following sentence:

“Certain platforms also qualify as Intermediary service providers”, with the implication that not all of them do. This thus means that the categories of online platforms and hosting providers are distinct, even if they can overlap.

Besides, the logic of the Commission’s consultation questions suggests a working assumption that some online platforms could be misleading users and could use the excuse of Article 14 to impose unfair terms on their users. Question 12 asks: “As an holder of rights in digital content protected by copyright do you face any of the following circumstances… d) an online platform uses my protected content but claims it is a hosting provider under Article 14 of the E-Commerce Directive in order to negotiate unfair terms Yes/NO”.

Such an attempt to reduce the scope of the liability exemptions (in Articles 12-15 of the E-commerce Directive as aforementioned) could also be read at p. 12 of the Consultation document, repeating p. 19 of the Commission’s Communication. While the Commission at first glance seems to be giving an option between two opposites: reducing or enlarging the scope of the liability exemptions, only the first path seems really worth of interest. The Commission wants to analyse two things:

  • “Rigorous procedures for removing illegal content while avoiding the take down of legal content”
  • “Whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems – a duty of care”

Yet, implementing “rigorous procedures for removing illegal content” does not necessarily mean enlarging the scope of the immunities.

Other categories are also mentioned. Question 26 of the consultation document, in particular, lists cloud service providers and isolates linking services.

While the Commission does try to clarify its terminology on occasion by e.g. stating in its Communication that “information service providers” and “providers of electronic communications services” [the terminology used in the telecoms rules and in particular in the E-privacy Directive] do not overlap, it could in fact be creating more confusion as the activities of ‘Internet access providers’, which are also mere conduits, are considered to consist “wholly or mainly in the conveyance of signals on electronic communications network” and are therefore providers of electronic communications services [Obviously the Commission is merely repeating the text of Article 2(c) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (the Framework Directive) which distinguishes between electronic communications services and information society services… although the recitals of the Framework Directive are in fact more cautious and “only” state that most of the activities of information society services are not covered by the scope of the Directive].

This terminology issue could, in part, be explained by a premise that a vertical, sectoral approach would be better than a horizontal approach, and it would maybe not be such a big deal if each sector had its own terminology [but is this really reasonable?].

It does seem that the Commission is tempted by a sectoral approach as the Communication states that, before the end of 2015, the Commission will make legislative proposals to, in particular, clarify “the rules on the activities of intermediaries in relation to copyright-protected content” (p. 8), while it will – at the same time – try to understand before the end of 2015 “a comprehensive assessment of the role of platforms, including in the sharing economy, and of online intermediaries” [why using online intermediaries now?]… through the means of the consultation.

And question 27 interestingly asks whether different categories of illegal content should be treated differently “as regards notice-and-action procedures” [but why not asking more broadly as regards conditions for liability exemption?].

One last thing [that could be more comforting] is that the Commission is questioning the clarity of the concept of a “mere technical, automatic and passive nature” to be found in Recital 42 of the E-commerce Directive and which has been used by the Court of the Justice of the European Union to delineate the scope of the exemptions of the E-commerce Directive (See question 24). This being said, it does not seem that the Commission is actually doubting the relevance of such a rationale. Once again, the assumption underlying the questions seems to be that active intermediaries should not be able to avail from the liability exemptions (See Question 25).

Sophie Stalla-Bourdillon