Notice-and-Takedown

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 unlawful information and must then promptly remove or block the information.

Under the E-Commerce Directive, Internet intermediaries are not liable for the information stored by others if they do not know, or should not reasonably know, about the unlawful information or activity. This means that if the service provider becomes aware of illegal information or activities, it must promptly delete the information or activity or make it impossible to access it. This non-liability regime has led to the application of Notice-and-takedown (NTD) procedures.

Notice-and-takedown procedures allow rightholders to report infringing material (‘notice’), after which the service provider may decide to remove or block (‘take-down’). 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 illegal information or activities, such as sharing child pornography or publishing defamatory information.

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

Notice-and-takedown systems are in line with users’ freedom of expression, especially if the material in question proves to be non-infringing. After all, because the exclusion of liability requires that the information must be taken offline immediately, a service provider will be inclined to proceed with removal without sufficiently investigating the (un) lawfulness of the notice. This can lead to abuse. A so-called ‘chilling effect’ is, therefore, a risk of this system. However, there are no procedures to protect freedom of expression in this case. The European legislator has not yet devised anything for this. Nevertheless, there is self-regulation.

In the Netherlands, we have known the Code of Conduct of the Notice-and-takedown for quite some time. This code of conduct is maintained by the Platform for the Information Society (‘Platform Voor de InformatieSamenleving’). The code provides a procedure for NTD requests, the conditions under which to delete and when to delete. The code also prescribes which information the rightholder must indicate.

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

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

It is important to distinguish the NTD procedure from the data subjects’ right to be forgotten. The right to forget is a privacy right.

In September 2017, the European Commission published a notice called “Tackling Illegal Content Online. Towards an enhanced responsibility of online platforms.” In doing so, the Commission provides several 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 filter and content identification technologies – (take-down and stay-down) – without losing the liability-free port.

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.