Duty of care + Standards _ CU

Accordingly, UPC was instructed to do everything that could possibly and reasonably be expected of it to block kino.to. Whether all reasonable measures were taken was to be reviewed only in a subsequent “enforcement process”

he Court identified a three-way conflict between:  a) copyright and related rights; b) the intermediary’s right to conduct a business; and c) the freedom of information of internet users. It repeated its Promusicae conclusion that where several fundamental rights are at stake, a fair balance must be struck between the requirements of all. The Court found that the injunctive order under consideration struck the right balance.

intermediaries must be careful not to infringe users’ freedom of information

hat seems like kind of a huge mess for ISPs who will now have to deal with injunctions asking them to block stuff

where they'll be required to show "reasonable measures" but will also need to balance that against blocking access to legitimate content.

t seems likely that many ISPs will opt for limiting their own liability by defaulting towards overblocking to avoid having to face challenges suggesting they didn't take enough "reasonable measures."

Can technology resolve these issues? As regards technical solutions, there are already examples of these, such as YouTube’s Content ID, an automated piece of software that scans material uploaded to the site for IP infringement by comparing it against a database of registered IPs. The next challenge may be how these types of systems can be harnessed by online platform providers to address extreme and hate crime content. Again the dilemma for policy- and law-makers may be the extent to which they are prepared to cede control over content to technology companies, which will become judge, jury and executioner. 

who should bear the cost of monitoring and removal.

o block access to websites where infringing content has been hosted. In Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2016] EWCA civ 658 the Court of Appeal concluded that it is entirely reasonable to expect ISPs to pay the costs associated with implementing mechanisms to block access to sites where infringing content has been made available

Why? Because (a) everybody has to chip in the fight against piracy - that includes ISPs and IBPs - and (b) because ISPs and IBPs make profit from letting users access infringing sites, and can afford to cover such costs whereas right holders may not. As such, bearing the full costs of injunctions is no 'unbearable sacrifice' in the meaning of the CJEU's Telekabel jurisprudence. 

The unions had asked the ISP/IBPs to block and de-list four websites providing access to protected material via streaming and/or downloading: www.allostreaming.com, www.allowshowtv.com, www.allomovies.com and www.alloshare.com.

The claimants also applied for the costs of the injunctions to be covered by ISP/IBPs in their entirety because they were not in the position to sustain these measures financially.

Facebook has come under recent criticism for censoring LGBTQ people’s posts because they contained words that Facebook deem offensive. At the same time, the LGBTQ community are one of the groups frequently targetted with hate speech on the platform. If users seem to “want their cake and eat it too”, the tech companies are similarly conflicted.

At the same time, the laws of many countries like Germany, and other international conventions, explicitly limit these freedoms when it comes to hate speech.

It would not be impossible for tech companies to form clear guidelines within their own platforms about what was and wasn’t permissable. For the mainly US companies, this would mean that they would have to be increasingly aware of the differences between US law and culture and those of other countries.

Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12-14, a general obligation to monitor the information which they transmit or store or a general obligation to actively seek out facts or circumstances indicating illegal activities. This is important, as general monitoring of millions of sites and web pages would, in practical terms, be impossible and would result in disproportionate burdens on intermediaries and higher costs of access to basic services for users. [73] However, Article 15 does not prevent public authorities in the Member States from imposing a monitoring obliga tion in a specific, clearly defined individual case.[73] In this context, it is important to note that the reports and studies on the effectiveness of blocking and filtering applications appear to indicate that there is not yet any technology which could not be circumvented and provide full effectiveness in blocking or filtering illegal and harmful information whilst at the same time avoiding blocking entirely legal information resulting in violations of freedom of speech.