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Draft submission for public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC) that is open until 15 October 2010:

Accessibility of company data protection officer

It is becoming more and more important that queries regarding personal data can be addressed directly to a company data protection officer where such a person has been appointed. Service providers should therefore provide the details of a company data protection officer, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner (article 5 to be amended).

Intermediary liability: Stop pro-active monitoring and protect freedom of speech

The German Federal Supreme Court (Bundesgerichtshof) interprets the e-commerce directive not to be applicable to applications for injunctive relief.[1] The liability exemptions in the e-commerce directive were ruled not to apply to claims for providers to prevent illegal user activity.[2]

This said, the most far-reaching doctrine of contributory "liability" is being applied by German courts, called "accessory liability" (Störerhaftung). According to this doctrine it is not only the wrongdoer himself (direct infringer) and participants (effective promoters or helpers) that can be subject to a claim for refraining from rights infringements, but also mere accessories, including providers of information society services. Responsibility for unlawful user action is extended to all persons who - without necessarily being wrongdoers or participants - deliberately and generally causally contribute to the infringement of a third party's right, provided they have the legal and effective means to detect and prevent the infringement. Once an intermediary obtains knowledge of an infringement, it is not only obliged to remove the unlawful content but also to take all technically feasible and reasonable precautions to prevent future infringements. In other words, subject to the requirement of reasonableness, service providers are obliged to examine all user content as soon as they obtain a notice of unlawful content. Culpable breach of this monitoring duty is punished by a disciplinary fine or even a prison sentence. This obligation is not limited to the detection of the unlawful content that was originally notified or to the original publisher of this content.[3] In practice, this jurisprudence effectively forces providers to pro-actively monitor user-generated content, this being the only way they can avoid indictment.[4]

The German courts have consistently held that a provider that is notified of illegal user-generated content must not only remove that content but also take all "appropriate" ("zumutbar") steps to prevent infringements of this kind in the future, including content generated by other users. There is much legal uncertainty about what measures the courts consider "appropriate".[5] A German court that finds a provider not to have taken sufficient steps will grant injunctive relief by prohibiting the provider to allow users to re-publish the illegal content, without setting out what measures the court considers necessary to prevent user infringements.[6] The extent of the provider's pro-active obligations is determined only when the rights holder initiates a separate procedure for alleged violation of the injunction and applies for a disciplinary fine to be imposed. So providers are told which steps they are required to take only in the judgement that imposes a fine on them for not complying with duties they had not been notified of. This jurisprudence not only causes unacceptable uncertainty for providers.[7] It also has unacceptable repercussions on the freedom of speech on-line, because providers threatened by fines will - often using automatic and broad filters - block and prevent any content that they consider could in any way be illegal.

German courts tend to go very far in what measures they impose on providers to prevent future infringements by their users: Technology must be used to automatically scan all user-generated content for content that potentially violates the injunction. Users that have generated illegal content in the past must be subjected to a manual examination of any future content they generate. To this end, all users must be identified and the anonymous use of services must be disabled. Using the identification data, all user actions must be logged. Content regarding issues that "provoke illegal content" must be examined in detail. All of these duties have been imposed not for the prevention of serious crime, but for the mere prevention of infringements of private titles including commercial rights.

These "preventive duties" imposed by the courts violate article 15 of the e-commerce directive, according to which Member States - including their courts - must not impose a general obligation on providers to monitor information which they transmit or store. Injunctions lead to a de facto obligation to monitor user-generated content[8], and thus amount to a general monitoring obligation.

The German Federal Supreme Court reads article 14 (3) to justify broad "preventive duties": "This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to [...] prevent an infringement". Also recitals 47 and 48 read: "Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities."

Article 14 (3) should no longer allow authorities to require service providers to prevent infringements. Policing is not the job of private companies. According to general principles of civil law, only those need to prevent harm that have created a hazard source. The exchange of information is at the roots of human nature, is a fundamental right (article 11 of the charter of fundamental rights) and can therefore not be considered a "hazard source". The provision of telecommunications services does not create a greater risk of rights infringements than the provision of any product or service. Typical, socially adequate and therefore legal risks do not put their originator in a position of being responsible for intentional violations committed by other people.