Protect freedom of speech on-line against private policing by service providers

Contribution to the European Commission’s consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC):

Summary of recommendations The concept of “specific” obligations of intermediaries to “prevent” illegal user action should be given up in its entirety. Intermediaries should only be required to remove illegal content upon notification. Service providers should not be required to remove or disable access to information before it has been found illegal by a court of law. The e-commerce directive should be amended to include strict sector-specific privacy rules for information society services. Discrimination against users that legally exercise data protection rights must be prohibited. Providers of information society services should be required to ensure the confidentiality of our Internet use.

I am contributing to the consultation as a private individual and a legal professional.

Before answering some of the specific questions posed by the Commission, I will deal with some points of particular importance.

A. Accessibility of company data protection officer (Art. 5 ECD)

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 ECD to be amended).

B. Protect freedom of speech by stopping pro-active monitoring and “infringement prevention” (Art. 14 (3) ECD) 1. Case study: Unacceptable situation in Germany

The German Federal Supreme Court (Bundesgerichtshof) interprets the liability exemptions in the e-commerce directive not to be cover applications for injunctive relief, i.e ...

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