Fundamentals of IT Law: ISP Liability and EU Regulation 2065/2022

UNIVERSITÀ POLITECNICA DELLE MARCHE - Facoltà di Economia "Giorgio Fuà"

1 SI CNICA UN E DELL RC UNIVERSITÀ POLITECNICA DELLE MARCHE - Facoltà di Economia "Giorgio Fuà" Fundamentals of IT LAW Prof. Roberto Ruoppo www.univpm.it2

Internet Service Providers' Liability and EU Regulation 2065/2022 Criticism

Jurisdictional Notion of Active ISP

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability Criticism concerning the new EU Regulation 2065/2022 . It has been not clearly transposed the jurisdictional notion of active ISP: the exemption of liability has been confirmed while the different role of online providers with power of control has not been in an appropriate manner established . There are many more duties imposed for a particular kind of internet provider, such as the so called «Very Large Online Platforms» (VLOP), but the notion of active ISP has not been transposed in a written rule . Why this notion has not been recognized in a written rule?3

Reasons for Not Recognizing Active ISP Notion in Written Rule

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability Criticism concerning the new EU Regulation 2065/2022 . The notion of active ISP has not been recognized in a written rule in order to not introduce too many duties that could realize an unfriendly landscape for digital companies . The current regime: the distinction between passive and active ISP is still in force, but a higher effort for legislative institutions (both domestic and sovranational) should be requested in regulating ISP liability in light of their evolution and development of technologies as well4

Outcomes of the Legal Framework

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability Criticism concerning the new EU Regulation 2065/2022 · Positive outcome deriving from this legal framework: there could be a cautious evaluation of the specific circumstances of each case · Negative outcome arising from this actual regime: there is a wide margin of appreciation for this assessment, thus violating uniformity and the foreseeability of the decision= it means that a certain degree of uncertainty can arise5

Exemption of Liability Regime for Digital Providers

Specific Kinds of Digital Providers

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability The exemption of liability regime provided for ISP and the specific kind of digital providers: · Social networks; . Third party content aggregators; . Online newspapers; . Blogs6

Exclusion of Online Newspapers from Exemption

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability The exemption of liability regime provided for ISP does not apply to online newspapers In this case we have an editor whose main purpose is to control the information that are uploaded on its website Therefore, even if they can be defined to be a third party content aggregator they are excluded from the regime of exemption of liability Their involvement is represented by an omission in the illicit committed by others (the negligence is represented by the lack of control that the editor is entitled to exercise)7

Legal Reason for Exclusion of Exemption

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE Internet service providers' liability What is the legal reason behind the exclusion of the exemption of liability? There is a subject that is legally entitled to control what is published and uploaded, therefore there is a formal knowledge about every single content8

ISP Involvement in Crimes Committed Online

New Risks and Features of Online Relationships

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online ISP activities have determined not only new opportunities for users, consumers and commercial entities, but also new risks connected and encouraged by online relationships' features: . Istantaneous uploading of contents: the person/entity addressed can be immediately offended by the author of an illicit content . Absence of filters that could avoid illicits' commitment · Anonymity of the author (hiding itself through fake accounts)

Informatic Crimes in Wide Sense

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 9 Crimes that can be realized both through online tools and offline ones are informatic crime in wide sense (illegal access to computer systems is an informatic crime in strict sense): it means those illicit behaviours that can be committed indifferently by using virtual means or by real relationships • Defamation · Stalking • Fraud · Incitement to crime (see, e.g., «Blu whale challenge» or «blackout challenge»)

Infringement of Fundamental Rights

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 10 Informatic crimes in wide sense: · Defamation · Stalking · Fraud · Incitement to crime (see, e.g., «Blu whale challenge» or «blackout challenge») Because of their destination to infringe fundamental rights (reputation, personal freedom) it is important to understand under which conditions the ISP can be considered to be liable

Positive Aspects of Online Platforms' Liability

ERSITA PO UNIVERS ECNICA 900 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 11 Positive aspects deriving from the establishment of online platforms' liability: · Empowering ISP by introducing virtuous behaviours useful to avoid illicits' commitment (such as controls or spam monitoring) . ISP liability represents a guarantee for victims who could have the possibility to determine the entity liable for their infringement, in comparison with the material author of the illicit who can hide itself behind a virtual account Even though the author could be identified, why it would be important to assess the ISP liability?12

European Commission Communication COM (2017) 555

R SITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online Communication of the European Commission COM (2017) 555 of 28 September 2017 «Challenge of online illicit contents. Towards a responsabilization of online platform» This act confirms the online platforms potential involvement in committing crimes: «online platforms [ ... ], in particular hosting providers, carry a significant societal responsibility in terms of protecting users and society at large and preventing criminals from exploiting their services [ ... ]. The spreading of illegal content online can undermine citizens' trust in digital environment, but could also threaten the further economic development of online platforms and of the Digital Single Market. Online platforms should step up their action to address this problem, as part of their responsibility which flows from their central role in society»

New Legal Rules and European Framework

ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 13 The acknowledgement of the crucial role played by ISP in our society has justified the introduction of new legal rules aimed to render European legal framework compliant with the new needs spreading in this context: . EU Commission Guide Lines September 2017 · See EU Directive 790/2019 on the protection of copyright · See EU Regulation 2065/2022 (Digital Service Act) "The wind seems significantly changed with respect to the landscape of early 2000s"

New Duties for ISP from COM (2017) 555

R SITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 14 EU Commission Communication COM (2017) 555 of 28 September 2017, «Challenge of online illicit contents. Towards a responsabilization of online platforms» Introduced new duties for ISP, inviting member States to comply with its provisions: . Take down duty: introduction by member States of procedures aimed to the effective and early removal of illegal contents (a timely intervention is pivotal) · Stay down duty: introduction of measures useful to prevent uploading illegal similar contents Which are the limits of these provisions?

Limits of Provisions in COM (2017) 555

R SITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 15 EU Commission Communication COM (2017) 555 of 28 September 2017, «Challenge of online illicit contents. Towards a responsabilization of online platforms» Which are the limits of these provisions? They are addressed to member States, without directly introducing duties, they demand this legal activity to member States

Conditions for ISP Liability in Crime Commission

ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 16 When an ISP can be considered to be involved in the commission of a crime and therefore liable for it: . When it is aware about the illegal content that has been uploaded on its platform: the legal acknowledgement can be satisfied through a notification both of the right-holder and of public authorities · When, notwithstanding this awareness, the platform has not adopted those measures useful for its removal . When the adoption of these measures was legally and concretely possible

ISP Liability for Defamation

Constitutive Elements of Defamation

ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 17 ISP liability for defamation Crime of defamation: when someone offends someone else by using dirty language in a way that the reputation of the person addressed is threatened in respect to an indefinite number of people Which are the constitutive elements of this crime: - Offence by vulgar words or dirty language (this is the behaviour) - Offence of reputation (this is the damage) - Publicity of the offence (that's why an indefinite number of people can be involved) In these cases, no doubt the author's liability. The question is: what about the ISP?

Features Enabling Defamation and ISP Involvement

ERSITA PO UNIVERS ECNICA 000 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 18 There are many features of ISP enabling the commission of defamation (such as other crimes that can be committed online): . Open access to the online platforms and no previous filter · Freedom of expression that can flow in hate speech . Possibility to benefit from anonymity through false accounts With regard to the position of ISP, its involvement is linked to the crime committed by another person, the illicit behaviour's material author (complicity in crime)

Omissive Nature of ISP Liability in Defamation

ERSITA PO UNIVERS ECNICA 000 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online 19 In case of defamation realized by an ISP user, the liability of the online platform could be of an omissive nature, since it can be considered liable for not having exercised those powers that is entitled to exercise . The first problem is: has the ISP the power to adopt measure when an harmful expression is uploaded on its platform? In this regard art. 15 of EU Directive 31/2000 does not impose any duty to control and monitor every information that is uploaded by its users; neither provides for a duty to find illegal contents But once it has been rendered aware of this feature it must promptly act and remove it