The presence of illegal content online has serious negative consequences for users, for other affected citizens and companies and for society at large. In the light of their central role and the technological means and capabilities associated with the services that they provide, online service providers have particular societal responsibilities to help tackle illegal content disseminated through the use of their services.
Given that fast removal of or disabling of access to illegal content is often essential in order to limit wider dissemination and harm, those responsibilities imply inter alia that the service providers concerned should be able to take swift decisions as regards possible actions with respect to illegal content online. Those responsibilities also imply that they should put in place effective and appropriate safeguards, in particular with a view to ensuring that they act in a diligent and proportionate manner and to preventing the unintended removal of content which is not illegal.
The Recommendation acknowledges that due account should be taken of the particularities of tackling different types of illegal content online and the specific responses that might be required, including through dedicated legislative measures. When taking measures in respect of illegal content online, Member States are to respect the country of origin principle laid down in Directive 2000/31/EC. Accordingly, they may not, for reasons falling within the coordinated field as specified in that Directive, restrict the freedom to provide information society services by providers established in another Member State, subject however to the possibility of derogations under certain conditions set out in that Directive.
In accordance with the horizontal approach underlying the liability exemption laid down in Article 14 of Directive 2000/31/EC, this Recommendation should be applied to any type of content which is not in compliance with Union law or with the law of Member States, irrespective of the precise subject matter or nature of those laws. This Recommendation primarily relates to the activities and responsibilities of hosting providers. However, where appropriate, the recommendations made can also be applied, mutatis mutandis, in relation to other affected online services providers.
Notices should be sufficiently precise and adequately substantiated so as to allow the hosting service provider receiving them to take an informed and diligent decision as regards the effect to be given to the notice. However, whether or not a given notice leads to knowledge or awareness within the meaning of Article 14 of that Directive is to be assessed in light of the specificities of the individual case at hand, bearing in mind that such knowledge or awareness can also be obtained in other manners than through notices.
Possessing the contact details of the notice provider is generally not necessary for the hosting service provider to be able to take an informed and diligent decision on the follow-up to be given to the notice received. Making the provision of contact details a prerequisite for the submission of a notice would entail an obstacle to notification. However, the inclusion of the contact details is necessary for the hosting service provider to be able to provide feedback. Including his or her contact details should therefore be a possibility for the notice provider, without this being required.
Content providers should, as a matter of principle, be informed of the decision to remove or disable access to the content stored at their request and be given the possibility to contest the decision through a counter-notice. Notice-and-action mechanisms should in no way affect the rights of the parties involved to initiate legal proceedings, in accordance with the applicable law, in respect of any content which is considered to be illegal content or of any measures taken in this regard by hosting service providers. Out-of-court settlements should be encouraged, provided that the parties’ access to court remains unaffected and that abuse is avoided.