German news article removed from search results after DMCA complaint
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Deutsch: Deutscher Artikel nach DMCA-Löschantrag entfernt
European procedures for the removal of online content that is judged or accused of being illegal currently depend on the interpretation of the e-Commerce Directive by Member States and private companies. This means that whenever sites, blog posts, images or comments on the internet are accused of being illegal, procedures implementing this Directive are not clear, not harmonised and lead to legal uncertainty. Internet service and hosting providers risk liability for the content of their customers once they have “actual knowledge” of its illegality or, possibly, just its existence, and do not remove the content 'expeditiously'. It is however very foggy what “actual knowledge” or “expeditious” means and what the requirements for a valid notice can be. Any lack of clarity leads almost automatically to the undermining of fundamental freedoms and the due process of law, because online companies will seek to defend themselves by deleting any content that creates a legal risk for them.
In the US, service and hosting providers can maintain their immunity via the so-called Digital Millennium Copyright Act (DMCA). Under these safe harbour protections, they cannot be held responsible for material that has been posted in breach of copyright. However, as soon as they receive a notification meeting certain conditions, they need to remove it from their services. Even though it can be argued that the structured US system is more predictable than the current European approach, it also has major flaws.
Google's latest transparency report, which focuses on the takedowns for search links, has revealed how absurd some requests are. Microsoft for instance has requested the removal of over 2.5 million URLs. The sheer volume means that the complaints procedure is mainly or fully automatic, with Google and other recipients of the "notices" automatically deleting the information in question. On the basis of DMCA complaints, Google also deletes sites from global search results – with no concern for whether the content is legal outside the U S.
For example, on 6 June 2012, Microsoft sent a DMCA takedown notice to Google regarding an article about Windows 8 published by the German IT-news platform Heise. The link to the article was removed without questioning the validity of the complaint. It was removed without even asking if the content would be legal in Germany. And it was removed without any consultation with the author of the article.
Heise staff noticed accidentally that the link was removed only after finding the DMCA report on their Webmaster Tools service. The German publisher immediately sent a counter-notice which however implied that the counter-notifier gives its consent that the legal competent authority is the District Court of Santa Clara County in California – despite the fact that the affected company, blog, news platform or website owner is based in Europe. The initial notifying party then has 10 working days to react to the counter-notice. During this period, the website will still not appear in search results. According to Google's DMCA report received by Heise, it can take up to 11 hours to remove links from its search result upon receipt of a DMCA takedown request. However, it can take several weeks until a takedown is reported by the collaborative archive Chilling Effects Clearinghouse (chillingeffects.org).
This recent example shows that the DMCA is, despite being more predictable than the European system, a process in which a website is first shut down and only then questions are being asked with regards to the legality of the content. In the US and elsewhere, the application of the DMCA has led to the deletion of speech without warning in numerous cases.
In Europe, it is now essential to establish a differentiated approach, procedures that are transparent and allow for due process to avoid, accidental and deliberate abuse leading to the take down of legitimate, non-infringing content and to ensure the functioning of the Digital Single Market.
With the aim to establish a framework and to provide guidance on European notice and takedown procedures, the EU Commission has just launched a public consultation in order to clarify the implementation of the e-Commerce Directive by the end of this year. All stakeholders and interested individuals are invited to reply to the public consultation and to provide the Commission with input before 5 September.
Microsoft asked to delete Heise article from Google search results (only
in German, 8.06.2012)
Google's Transparency Report on takedown requests
RIAA Demands Unlimited DMCA Power From Google (2.06.2012)
European Commission consultation questionnaire - A clean and open
Internet: Public consultation on procedures for notifying and acting on
illegal content hosted by online intermediaries
Deadline: 5 September 2012
(Contribution by Kirsten Fiedler - EDRi)