EU proposes to reduce intermediary protection – but how much?

The European Commission recently published wide proposals to reform copyright law. One particular concern is that the proposals appear to reduce the existing legal protections for sites that host third party content. Under the current e-Commerce Directive, such sites are generally protected from liability until they are informed of allegedly infringing content (Article 14), and cannot be required to inspect content before it is published (Article 15).

Recital 38 to the proposed Copyright Directive suggests that some hosting sites will lose one or both of those protections. And it's very unclear, from the draft wording, which sites will be affected. Those that "play an active role … irrespective of the means used therefor" seem to lose their liability protection, those that "store and provide access to the public … thereby going beyond the mere provision of physical facilities" or "stor[e] and provid[e] access to the public to large amounts … of subject-matter uploaded by their users" will be required to take proactive measures.

In our submission to the Intellectual Property Office, we've pointed out that whatever the intended scope of the restrictions is, such uncertain terms are likely to give a much wider range of hosting providers concerns about their legal position. Since organisations typically avoid legal uncertainty, it's likely that unclear wording will result in the withdrawal or restriction of services that the law was supposed to continue to protect.