The UK government, it seems, has a special relationship with Silicon Valley and its intermediaries. While David Cameron has set Google as the homepage of his copyright policy, Google is home for his chief spin doctor, Steve Hilton, married to Google vice-president Rachel Whetstone. And David couldn’t wait to be friends with Facebook, though it began to look like a one-way relationship when Facebook refused to take down the ‘Raoul Moat you Legend’ page.
However, one of the core principles of the Conservative party’s Big Society is social responsibility, and that includes the internet. How much longer can society continue to turn a blind eye to mindless disrespect on the internet for the rights of those who are making creative contributions?
The European Commission is interested in knowing if intermediaries could be doing more:
‘…the currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively. Given intermediaries’ favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.’2011 promises a packed programme of intermediary legal events. They address various types of legal responsibility (liability, injunctions, three-strikes law) and the different implications each of these has for different types of intermediary (ISPs and websites).
A Communication on the E-Commerce Directive is due following last year’s consultation. This will revisit the legislation that exempts intermediaries from liability for third-party illegal content where they are hosting or ‘mere conduits’, and prevents them from being placed under a general obligation to monitor information they transmit or store.
The ECJ will be interpreting the Directive in L’Oréal v eBay (Case C‑324/09), deciding whether sites can be liable for any infringements for which they haven’t received a take-down notice. The advocate general has already given his opinion, saying that ‘if A has been discovered infringing trade mark X by listing an offer on the electronic marketplace in September, I would not exclude that the marketplace operator could be considered having actual knowledge of information, activity, facts or circumstance if A uploads a new offer of the same or similar goods under trade mark X in October.’
‘As to the scope or contents of an injunction to be given against an intermediary,’ the AG continued, ‘I do not see that EU law would impose any specific requirements beyond efficacy, dissuasiveness and proportionality.’ In practice, for a site like eBay, he suggested injunctions have the same scope as liability (same user infringing same trade mark), which, curiously, seems to make injunctions superfluous. ‘Reasonable measures to reveal the true identity of a user hiding behind several user identifications may be required from the service provider: this would not constitute an obligation of general monitoring forbidden by Article 15(1) of Directive 2000/31 but an acceptable obligation of specific monitoring.’ It seems implicit that a site would have to do this ‘specific monitoring’ anyway to retain the Hosting Defence and avoid liability?
Where does specific monitoring end and general monitoring begin and what precisely are the objections to ‘general monitoring’ anyway? We are already used to our communications undergoing computerized monitoring in the form of anti-virus software – is privacy a genuine concern or just an excuse rehearsed by those who have something to hide?
The ECJ may get to the bottom of such questions in relation to injunctions against ISPs in SABAM v Scarlet Extended (C-70/10). In this case the question is whether an injunction can require an ISP to filter all traffic to identify and block unauthorized copyright content. The hearing took place on 13 January, and the Content and Carrier blog expects the opinion of the advocate general by mid April, so a judgment might just be squeezed into 2011.
In the UK the Digital Economy Act’s s. 17 site-blocking injunction is under scrutiny – judicial review to see if it is legal; Ofcom to check it can be done.
Usenet-indexing site Newzbin, which was found liable for copyright infringement last year, went into administration, failing to pay damages, and popped up again as Newzbin2 hosted in Sweden. A court will be deciding whether the claimants can have an injunction under s. 97A CDPA requiring BT to block the site.
Meanwhile, injunctions against intermediaries of all kinds are also the subject of legislative review in the ongoing consultation on the Enforcement Directive. Although the Directive does not cover injunctions relating to copyright infringement, which are covered by Article 8(3) of the Copyright Directive, the Commission’s Staff Working Document takes the opportunity to consider them anyway and raises a number of issues:
—Some Member States have failed to grasp that injunctions may be granted against intermediaries without liability being implied.
—There is no established jurisprudence on cross-border injunctions.
—There is confusion over whether injunctions can apply to future, unspecified infringements (which has given rise to the questions in L’Oréal and SABAM).
The judicial review of the Digital Economy Act will consider whether ISPs can be placed under obligations to notify subscribers about their alleged infringements and perhaps suspend their accounts. The court will be measuring the Act against EU laws – which are moving goalposts given the consultations.
There is substantial overlap in the scope of these judgments and consultations and it will be interesting to see how they influence one another. It looks like the intermediaries for our communications will continue to be one of the subjects of our communications for some time to come.