Today Internet has been serving not only to exchange information, but it is a place of offering different services. Hosting service providers can be categorized as one type of online intermediaries, which provide a huge amount of information through their websites. However, they do not know which information is illegal until someone notifies them about illegal content on their website. In another word, hosting service providers should have “actual knowledge” to take action against illegal content. If they do not have actual knowledge, they should not be liable for illegal content, which they host.

This article explains how notice and action procedure works in the EU and shows some main issues of its legal framework. In first section, it analyzes the different ways of interpretation of “actual knowledge” and its horizontal application to all illegal contents. Then it discusses how fast illegal contents should be removed or disabled regarding with different types of illegal contents. Finally, it recommends some future reforms to EU legislation in order to make this procedure more transparent and fair.

Notice and action, actual knowledge, hosting service providers, illegal content

Table of Cases (EU)

Delfi AS v Estonia [2015] Case no. 64569/09 European Court of Human Rights

Godfrey v. Demon Internet, [1999] 4 WLUK 224

L’Oreal and Others v eBay,[2011] Case C-324/09, Court of Justice of the European Union

Table of Cases (US)

Zeran v. America Online, Inc [1997] 129 F.3d 327

Table of Legislation EU

EC Directive on Electronic Commerce, 2000

Irish Copyright and Related Rights Act 2000

Table of Legislation (US)

Communications Decency Act 1996

Digital Millennium Copyright Act, 1998

Articles

F.Wang, ‘Response to Public Consultation on Procedures for notifying and acting on illegal content hosted by online intermediaries’ (2012), Issue 91 Intellectual Property Forum, 93-97

G.Spindler, G.Riccio (2007) ‘Study on the liability of internet intermediaries’ (Markt/2006/09/E Service Contract ETD/2006/IM/E2/69), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2575069 (last accessed on 17 July 2021),

T. Moore and R. Clayton ‘The Impact of Incentives on Notice and Take-down’, (2008), Computer Laboratory, University of Cambridge, Seventh Workshop on the Economics of Information Security,1-24

M. Urban, J. Karaganis L. Schofield ‘Notice and take down in every day practice’ (2017) available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628&download=yes (last accessed on 24 July 2021)

J. Urban, L.Quilter ‘ Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, (2006) Volume 22, Santa Clara Computer & High Technology Law Journal 621-693

Reports

‘A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries, available at https://blackboard.brunel.ac.uk/bbcswebdav/pid-1354701-dt-content-rid-6687642_1/courses/C.LX5625.A.2020-1.TRM2/Notice%20and%20Takedown%20Consultation%202012.pdf (last accessed on 17 July 2021)

Communication staff working document ‘Online services, including e-commerce, in the Single Market’ European Commission, Brussels, 2012, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011SC1641&from=EN (last accessed on 17 July 2021)

Websites

eBay VeRo Program information, available at https://pages.ebay.com/seller-center/listing-and-marketing/verified-rights-owner-program.html (last accessed on 17 July 2021)