Notice and Takedown

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The notice-and-takedown (NTD) procedure is an instrument for internet intermediaries to qualify for non-liability for information from third parties. The intermediary can be held liable for wrongful information. Consequently, he or she should promptly remove or block the info.

Under the E-commerce directive, internet intermediaries are not liable for the information stored by others. This applies if the intermediary does not know, or should not reasonably have known, about the unlawful information or activity. This means that if the service provider becomes aware of illegal information or activities, he or she must promptly delete the information or activity or make access to it impossible. This non-liability regime has led to the application of notice-and-takedown (NTD) procedures.

Notice and takedown

Notice-and-takedown procedures allow rightsholders to report infringing material (“Notice”). After this happened, the service provider can decide to proceed with removal or blocking (“Takedown”). It is mainly used in the context of infringements of intellectual property rights, such as copyright, trademark law and trade name law. But it can also be used in the context of other unlawful information or activities, such as sharing child pornography or publishing defamatory information.

No Notice and Staydown

There is no legal obligation not to upload information that has been taken offline again. A Notice-and-staydown system is therefore not mandatory.

Freedom of Speech

Notice-and-takedown systems are at edges with users’ freedom of expression. This is particularly the case if the material in question is found to be non-infringing. Because the liability exclusion requires the information to be taken offline immediately, a service provider will be inclined to proceed with the deletion. This is then followed by investigation, however, it can still lead to abuse. A so-called “chilling effect” is, therefore, the risk of this system. Moreover, there are no procedures to protect freedom of expression in this case because the European legislator has not yet devised anything for this. Nevertheless, self-regulation is possible.

NTD Code of Conduct

In the Netherlands, we have known the Code of Conduct for the Notice-and-takedown procedure for quite some time. This code of conduct is maintained by the Platform for the Information Society. The code provides a procedure for NTD requests. It lists the conditions under which and when removal is mandatory. The code also prescribes which information the rightholder must indicate.

Undeniably Wrongful or Notice-and-Notice

It follows from the code of conduct that the service provider only has to proceed with removal if the material is unmistakably illegal. If not, then the so-called “notice-and-notice” applies. The service provider must then inform the provider of the material of the request and ask him to contact the complainant.

Non - Liability vs. Prohibition or Commandment

The proper following of a notice-and-takedown procedure can only lead to non-liability for damage of the internet intermediary. The internet intermediary may still be obliged to remove the material. In addition, service providers also have to provide name and address data under certain circumstances.

Removal of Personal Data

The NTD procedure must be distinguished from the data subjects’ right to forget. The right to forget is a privacy right.

European Reinforcement of NTD Developments

The European Commission has made several attempts to further define the responsibilities of internet service providers for illegal information and activities on the internet. Some of those initiatives have failed. The Commission wants to provide greater legal certainty by harmonizing notice-and-takedown procedures. In addition, it has expressed concerns about the erroneous removal of material in regard to freedom of expression and freedom to conduct business.

In September 2017, the European Commission published a report called “Tackling Illegal Content Online. Towards an enhanced responsibility of online platforms. ” In doing so, the Commission provides a number of guidelines and principles for more decisive action by online platforms against illegal material. This includes combating criminal activities and counterterrorism. Moreover, the use of proactive measures such as filtering and content identification technologies are also addressed. This procedure is applied without losing the liability-free port.

This encourages platforms to act proactively while not losing the limitation of liability.

The European Commission also provides guidelines for NTD procedures. Accordingly, platforms are encouraged to implement systems to submit reports that are sufficiently precise and adequate. There should be room for explanation and clear reference to the location of the illegal material. To prevent removal of lawful material, safeguards must be taken that limit that risk. Users affected by an NTD report should be entitled to a counter-notice. That is, they should be able to respond to the removal. If the counter-notice gives reason to believe that the information is unlawful, the material must be replaced.

False NTD Notification

Submitting a false notice can be regarded as an unlawful act under Dutch law. The petitioner can then be held liable for the damage resulting from this.

Contact

LAWFOX’s lawyers are happy to assist you. We can prevent legal proceedings for your company or organization, or take legal action if required. We have a team available to help you with all your questions about notice-and-take-down procedures.

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