Facebook and Privacy: cases, reports and actions in Europe

Facebook and Privacy: cases, reports and actions in Europe

A list of European enforcement action, official legislative (Parliamentary) reports, and cases concerning Facebook with respect to data protection and privacy. This is a work in progress, last updated November 2018.

Data Protection Commissioner (Ireland) v Facebook Ireland Limited, Maximillian Schrems [Case C-311/18]

  • Jurisdiction: European Union, Ireland
  • Status: Case still in progress
  • Authority:  Court of Justice of the European Union
  • Keywords: EU Data Protection Directive (95/46/EC); EU/US Privacy Shield; Fundamental Rights

Continue reading “Facebook and Privacy: cases, reports and actions in Europe”

Noteworthy interview on new social media advertising regulations

Noteworthy interview on new social media advertising regulations

Earlier this autumn, several celebrities were investigated by UK regulators for not labelling social media posts as “advertisements”. Given that so-called influencers can potentially sway the shopping habits of millions, the Advertising Standards Association published An Influencer’s Guide to making clear that ads are ads, to help celebs and bloggers avoid misleading consumers. But what does this guide really mean in practical terms? To better understand the world of influencers and online advertising, I’ve interviewed Nicole Ocran-Hegarty: journalist, style blogger, and Influencer Strategy Manager at Disney.

noteworth

Kelsey:  Nicole, you and I first met online about 15 years ago on the blogging platform Livejournal. Since then, we both – coincidentally – moved from the United States to London, where we finally met in real life!

Can you tell me a bit about your professional background in journalism, and what inspired you to begin your personal fashion blog, The Noteworthy?

Nicole:  I honestly cannot get over how the Internet brings people together. I remember typing away and commenting on your LiveJournal and messaging you from my childhood bedroom in Annandale, Virginia. You were constantly here there and everywhere and I was so jealous of that. Anyway, I’m already off topic!

My career in journalism started when I was 19 or 20 and a student at George Mason University. I had just started editing the Style pages of my university’s student newspaper, the Fourth Estate. It was there that I really honed my craft, my love of writing, editing of interviewing. In my junior year I became editor-in-chief of the paper: I lived and breathed the paper, and didn’t want to do anything else but be in the Student Media office. I also was interning at the The Washington Post’s free daily paper, Express.

By the time I graduated from George Mason, I started another internship at the non-profit Student Press Law Center, fighting for First Amendment rights for students across America. At the same time I applied to City University in London, and went with their journalism masters programme! It was the best decision I ever made.

In London, I got my first job in entertainment journalism at Entertainment News, and I’ve since written for the Metro, The Sun and Refinery29 UK! I decided to start The Noteworthy while I working in a job where I wasn’t really able to express myself through personal writing. When I got made redundant, The Noteworthy became a real outlet for me, as I was able to showcase my love of fashion, where I hadn’t been able to before.

nwty2
In addition to writing about style, fashion and beauty, Nicole routinely explores topics about feminism, politics, Black women, and pop and celebrity culture. Recently, she explained why she won’t shop at Topshop anymore in light of the Philip Green sexual harassment scandal.

Under the new Influencer’s Guide, bloggers only need to disclose something as an advert if: (1) they’ve been “paid” in some way, which could include receiving a freebie, AND (2) they are under some form of editorial “control” by the brand. What are your thoughts on this? Do you think most people are aware of the “control” aspect? Do you think it matters?

I have so many thoughts on this! Firstly, I think disclosure is incredibly important. We’re in an age now where not only are audiences incredibly savvy but they’re also somewhat skeptical. It’s so important to be completely honest about their gifted items, paid campaigns, free trips and so on. Especially in an age where we are just feeling terrible and comparing ourselves to everything we see online.

I’m not sure how much the general public knows how much control a brand has over content. Often it can be very clear and sometimes it doesn’t look authentic to that influencer, so it can be a bit obvious. Other times, the brand might gift the influencer a product without any expectation for them to post, so it ends up just fitting in naturally.

The control aspect is key. If a brand gifts you an item, but then expects you to post on a certain day or see content before it goes live – then this is sponsored content. Even if you haven’t been paid for it, and that must be made clear to your audience. The guidelines are in place to protect consumers, which I appreciate.

You mention “gifting” by brands. Is the distinction between “paying” and “gifting” a product an important one to make? If so, why?

To me, yes. The two mean completely different things in my mind – when something is paid, I think of brand control, I think of money exchanging hands, and contracts signed. Gifted items and freebies although have monetary value, should be made clear in a different way. I do prefer to know that an influencer hasn’t purchased that product with their own money, for example, or didn’t pay for that holiday.

Something I hear often from colleagues and friends is that advertising on social media is “obvious enough,” and that consumers don’t need the #ad hashtag or similar disclaimers. As a general rule, do you think bloggers and influencers are actually clear and transparent enough? Is there sufficient self-regulation? Or were the regulators right to step in with new rules?

There are definitely #ads and #sponcon that are extremely obvious with their advertising messaging and aren’t being declared as such – but I don’t think that should matter. The regulators are absolutely right to step in with new rules and best practice. I also think there’s been a real effort from bloggers and influencers to declare ads, but there are still a select few (including celebrities and reality stars) getting away with not doing it.

What do you think some of the biggest concerns influencers and bloggers have with making it clear that adverts are indeed adverts? Aesthetics? Independence? Credibility?

I think fatigue? I think there are a lot of consumers who feel like they are constantly being advertised to, but we spend so much time on our phones, our laptops and social media now that advertising is just becoming more obvious. It’s always been there in TV, radio and print!

no ad

But at least for me, a lot of the bloggers that I followed before they were known as influencers, I followed them because I liked them as people (or their online personas), so I understand it can be jarring to see an ad thrown in with their regular content. But I enjoy supporting them still because I feel like I’ve been on that journey with them.

If you could speak to the advertising regulators directly and tell them one key thing about this issue, what would it be?

I do think a lot of the declaration can feel excessive, which does cause people to have to say “This isn’t an ad, I just love X”. My main issue has been the distinction between a gifted item as payment, especially as there can be a lot of influencers who receive gifted product and declaring it as an ‘ad’ or as ‘sponsored’ to me as a consumer, means something else entirely.

Finally, what have been the most challenging and rewarding things about running your own fashion and lifestyle blog thus far? What is something you hope to accomplish or participate in over the next few months?

The most challenging thing is time! I still work full-time in talent/influencer strategy, so that is my 9-5 job. Having to run my blog during evenings and weekends can be pretty tiring but also I just wish I could do more!

The most rewarding by miles and miles are the friendships I’ve made through blogging, that is what I cherish the most and is what keeps me coming back to create more content! Being able to speak to people all over the world is just a joy.

I hope to be able to get my life in order and continue to post consistently! Anything I can do to write more would be ideal, so hopefully some more freelance opportunities, or even speaking opportunities as well!

banner

Many thanks to Nicole for sharing her time, expertise and insight with me for this interview! You can follow her at The-Noteworthy.com, on Instagram at @NicoleOcran, and on Twitter @NicoleOcran

Airbrushing history? Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism

Airbrushing history? Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism

A former Oxford University student asked image agency Alamy to remove photographs of her celebrating the end of exams. Now, the photographer accuses Alamy of “censoring the news”.  Is this a threat to freedom of the press, or has the woman’s human right of privacy been correctly protected?

The end of exams are a liberating and happy time for university students around the world. At Oxford, students take their celebrations to another level by partying en masse in the streets, covering each other in champagne, shaving foam, confetti, flour and silly string in a tradition known as “Trashing.”

Screenshot 2018-10-14 at 9.37.21 AM
An Alamy photo of Oxford celebrations from 1968. “Trashing” has become a bit more crazy since the 1990’s.

Speaking to the Press Gazette, Photographer Greg Blatchford explained that during the 2014 Trashing, a student invited him to take photographs of her celebrating on the public streets. Some of the images show her swigging from a bottle of champagne, while in others she is covered in silly string.

Blatchford then sent “about 20” images to Alamy as news content. The former student subsequently stated that she “loved” the images in email correspondence to Blatchford, and even shared them on Facebook. This summer, four years later, the woman contacted Alamy to have the photos deleted. The company removed the images – much to Blatchford’s dismay.

Screenshot 2018-10-14 at 9.37.58 AM
An Alamy stock image of Oxford University Trashing celebrations. Note: THIS IS NOT ONE OF THE SUBJECT PHOTOGRAPHS.

The right to be forgotten under the GDPR

Because the woman was able to be identified from the photographs, they constitute “personal data” as defined by Article 4 of the General Data Protection Regulation (GDPR). Under Article 17 GDPR, data subjects have the right in certain circumstances to compel the erasure of personal data concerning him or her.

For example, if the data was originally collected or used because the individual gave their consent, and that consent is subsequently withdrawn, the company may honour the request for deletion (Article 17(1)(b)). However, a company can also use a “counter attack” if an exception applies. Importantly for news and media agencies, if keeping the data is necessary for exercising the right of freedom of expression and information, they may be able to refuse the request and keep the data (Article 17(3)(a)).

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know.

Are journalists under threat from privacy lawyers?

Blatchford explained that although they are now considered “stock images,” they were originally “news” photos and should not have been removed. By deleting the photos, Alamy “are censoring the news. I’m incensed that someone can influence news journalism and censor the past where clearly if photographs are taken in public, with the full consent of participants they can turn around and say ‘sorry, that’s not news’ later. This sets a precedent for anybody to walk up to a news organisation and say I don’t like the pictures of me. Journalists will then start feeling the threat of lawyers.”

In a statement to the Press Gazette, Alamy’s director of community Alan Capel said the images were submitted as news four years ago, but moved 48 hours later to the stock collection. “Therefore we are surprised that this is deemed to be ‘censoring the news.’ As per our contract with our contributors, we can remove any images from our collection if we see a valid reason to do so.”

The university said that participating in trashing can lead to fines and disciplinary action since it is against the university’s code of conduct
The comical images of students wearing sub fusc (formal academic attire) while partying are often published in newspapers around the country in May.

Privacy and press freedom have long been considered competing interests, but that’s not to say that striking an appropriate balance between the two is impossible.

On some level, I do sympathise with the photographer. I also struggle to buy Alamy’s argument that the images are not “news content” and are now “stock images.” The classification of an image should be based on its context, purpose and subject matter – not the time that has elapsed since the event, nor the label attributed to it on a website.

Stock images are, by definition, professional photographs of common places, landmarks, nature, events or people. By contrast, the Oxford Trashing photos are attributed to a specific time (May), place (Oxford), category of people (students), and event (celebrating the end of exams). They are popular for several reasons. Firstly, they illustrate a charming and comical juxtaposition. Although these students attend one of the oldest and most prestigious Universities in the world, they are – after all – entitled to a bit of fun. Secondly, Trashing has received increased press attention in recent years, as students have become subject to complaints fines, disciplinary action, and even police enforcement. These images clearly show, in ways that words alone cannot, matters of public interest.

Screenshot 2018-10-14 at 1.04.41 PM.png

In this particular instance however, I think Alamy have made the right decision in deleting the images.

Although the Press Gazette does not name the woman, it does note she is “a marketing director in New York.” It’s entirely plausible that she has valid concerns that the images of her participating in Trashing may negatively impact her reputation and career, or otherwise cause some sort of harm or embarrassment.

She claims that “there was no consent given to publish or sell my photos anywhere. I am not a model nor have given permission to any photographers to take photos of me to publicly display or to sell. This was a complete breach of privacy.” This contradicts what the email records show, but even if she had lawfully consented to the photographs being taken at the time, she is entirely within her rights to now withdraw consent. 

On balance, Alamy probably has dozens – if not hundreds – of images from the 2014 Trashing at Oxford. The likelihood that the images of this woman in particular are somehow especially newsworthy is minimal. Had Alamy refused to delete the photos, the woman would have been entitled to raise a complaint with the Information Commissioner’s Office. ICO enforcement action can include injunctions, sanctions, or monetary fines. Furthermore, Alamy would risk becoming known as an organisation that doesn’t care about privacy laws, thereby damaging its reputation.

Contrary to Blatchford’s concerns, it is doubtful that an organisation would delete a genuinely newsworthy image, simply because someone doesn’t like how they look. The right to be forgotten is not an absolute right to be purged from history, but a right to regain control of how information about you appears online.

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know. If you’re interested in how celebrities control images of themselves, see Fame and Fortune: How do Celebrities Protect Their Image?

Header image by Alex Krook via Flickr

UK regulator to investigate social media influencers

UK regulator to investigate social media influencers

A number of celebrities and social media stars are being investigated by the Competition and Markets Authority, which says it has concerns that some influencers are failing to disclose that they are being paid for their endorsements.

In the early days of social media, Instagram and Facebook were seen as ways to connect with those closest to us, and to provide an insight into our private lives. Today however, models and celebrities can make thousands (if not hundreds of thousands) of dollars with every photo they post, simply by featuring a product in their image. This nuanced form of targeted marketing deliberately blurs the line between “advertising” and “personal” sharing, and it’s big business. According to the Financial Times, Instagram influencers earned more than $1bn (£770m) in 2017.

Related image

Pictured here is Chiara Ferragni, Italian fashion writer, influencer, businesswoman; and the first-ever blogger to be the focus of a Harvard Business School case study. Is this post of hers an advertisement, or is she just sharing the love?

Under American law, companies who work with influencers (defined as “key individuals with significant social media followings”) to promote products, services, or brands must follow certain rules, many of which are set out in Title XVI (Commercial Practices) of the Code of Federal Regulations. In particular, when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed. (16 C.F.R. §§ 255.0-255.5).

In practice, this means that when a company pays an individual – either in cash, or through discounts, free travel, or products – the company and influencer should enter a written contract. The contract should oblige the influencer to both “disclose its material connection to the advertiser clearly and conspicuously,” as well as “refrain from making any false or misleading statements about the products and services.”

Related image

nearly identical post to Chiara’s above, but Victoria at inthefrow here has included #ad. Is that clear and conspicuous enough?

Here in the United Kingdom, where influencers are paid to promote, review or talk about a product on social media, the law requires that this must be made clear. The use of editorial content that promotes a product –also known as “advertorials” or “native advertising”– must clearly identify that the company has paid for the promotion.

Earlier this month, the Competition and Markets Authority (CMA) launched an investigation into whether consumers are being misled by celebrities who do not make clear that they have been paid, or otherwise rewarded, to endorse products online. In its press release, the CMA announced that it has already written to a range of celebrities and social media influencers to request information about their posts and the nature of the agreements they have in place with brands. This comes just weeks after Made in Chelsea star Louise Thompson was slapped on the wrist for failing to disclose an Instagram post as a paid-for advertisement for watchmaker Daniel Wellington.

The regulator is also asking consumers to share their experiences, and says it would “particularly benefit from hearing from people who have bought products which were endorsed on social media.”

Related image
Notice that this post says at the top, “paid partnership with.” Is that better than #ad?

The investigation is being carried out under Part 8 of the Enterprise Act 2002 in respect of potential breaches of the Consumer Protection from Unfair Trading Regulations 2008. If an influencer ignores the CMA’s requests to comply with the law, an enforcement order in court. As for next steps, breaching such an order can lead to an unlimited fine or a jail term of up to two years. However, examples of meaningful penalties are still almost non-existent.

What do you think? Are influencer adverts easy enough to spot, without the hashtags and caveats? Interestingly, a study by Bazaarvoice and Morar Research found that nearly half of the 4,000 UK consumers polled are “fatigued” by repetitive influencer content. The majority also said they felt influencers were publishing content that was “too materialistic” and “misrepresented real life.” Notwithstanding this, the World Federation of Advertisers reported that 65% of multinational brands plan to increase their influencer investment. Perhaps there’s truth in what Chiara herself once quipped: “some loved me, some hated me—but they all followed me.”

 

Interested in this topic? Be sure to check out The Fashion Law’s Annual Brand and Influencer Report: The Good, Bad, and Highly Problematic. Featured photo above is Lena Perminova at Paris Fashion Week Autumn/Winter 2018 | Source: Getty Images

Sir Cliff Richards v BBC: is publicity the soul of justice?

Sir Cliff Richards v BBC: is publicity the soul of justice?

You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South Yorkshire Police. Nearly four years after the BBC first named and shamed Sir Cliff in what is now considered to have been “sensationalist” journalism, the High Court has determined that his rights of privacy were infringed.

What makes this case so interesting is that it does not focus on defamation —that is, the publication (or voicing) of a statement which adversely affects another person’s reputation. Instead, Sir Cliff won his case on the basis that the BBC’s wrongful disclosure of his private information was an invasion of his privacy. 

In Sir Cliff Richard v BBC and South Yorkshire Policethe Court considered if suspects who have not been formally charged by police have a reasonable expectation of privacy in respect of the criminal investigation. How are an individual’s rights to privacy balanced against the freedom of expression enjoyed by media organisations? That the suspect in this case is a celebrity only complicates matters, as it calls into question the importance publishing private details in the name of public interest.

Prosecutors said in 2016 that there was not enough evidence to justify criminal charges against Mr. Richard, one of Britain’s best-known entertainers, with a career spanning some 60 years. However, the BBC stands by their reportage of the allegations, and I suspect the BBC will indeed appeal this decision.

As if written for the stage, the Justice Mann’s 120-page judgement begins with a summary of key characters and the plot as it unfolded…

Related image
Daniel Johnson, in front of Sir Cliff’s Berkshire estate

Daniel Johnson, an investigative journalist for the BBC, received a tip-off from a police insider in June 2014 that Sir Cliff was under investigation for historic sex offences against a child. In a manner some would consider blackmail, Johnson “exploited the opportunity to get confirmation of his story about Sir Cliff, and more details if possible” from the South Yorkshire Police (SYP). In exchange for Johnson not publishing the story immediately, the SYP promised that he would be given advance notice of the search of Sir Cliff’s estate. The raid was eventually conducted in August 2014, with BBC crew waiting at the gates and helicopters hovering overhead to capture the whole ordeal.

In case you’re wondering where the Beeb’s lawyers were, the BBC held a meeting to discuss whether to name Sir Cliff and when to broadcast. In her testimony, Senior Editor Fran Unsworth explained that “the legal risk was diminishing because they had got a lot of confirmation of the facts of the story”. The principal legal concern seems to have been in respect of factual accuracy and defamation, and not privacy – as “the lawyers had not flagged that up to her as a specific risk” (para 111).

scne2
the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.
scene1
Three gloved individuals appear to be looking through what is likely Sir Cliff’s office

The legal framework of Sir Cliff’s privacy claim is enshrined in European Convention on Human Rights, brought into force in the UK by the Human Rights Act 1998.

Article 8 sets out the right to privacy: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law […] or for the protection of the rights and freedoms of others.”

Article 10 upholds the BBC’s competing rights of expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [including those] for the protection of the reputation or rights of others.”

In instances where which both Article 8 and Article 10 are engaged, the Court has to perform a balancing and weighing act to ascertain which predominates. Neither article has prima facie precedence over the other.

Article 8 privacy protections arise only where an individual has a reasonable expectation of privacy. For example, if I have a conversation with my friend in a crowded coffee shop in central London, I cannot reasonably expect our discussion to be protected as truly private.

The 77 year-old singer told the Court that he suffered an “unbelievable amount of hurt and pain” after the BBC broadcast the allegations that he had sexually assaulted a boy in 1985. “It felt like torture, sustained over almost two years. It felt as though everything I had done, everything I had built and worked to achieve, was being torn down, like life itself was coming to an end.”

But one might wonder if, as a celebrity, Sir Cliff cannot claim to have an expectation of privacy. A certain amount of emphasis was given by the BBC to the fact that Sir Cliff was a public figure, and one who had promoted his Christian beliefs. Because Sir Cliff had been so vocal (ie public) about Christian morality, the BBC considered that his alleged sexual crimes against a child qualified as a matter of public interest. To that point, the Court acknowledged that in certain special circumstances, the public’s right to be informed can extend into private aspects of public figures (para 276).

However,  Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch) upheld that a public figure is not, by virtue of their fame, necessarily deprived of his or her legitimate expectations of privacy. Axel Springer v Germany 39954/08 [2012] ECHR 227 also makes clear that the safeguard afforded by Article 10 to journalists is subject to the proviso that they are acting in good faith and on an accurate factual basis, and that they provide “reliable and precise” information in accordance with the ethics of journalism.

In considering the BBC’s argument that the stories about Sir Cliff had been published in the public interest, the Court disagreed, saying that reporters at the BBC “were far more impressed by the size of the story and that they had the opportunity to scoop their rivals.” (para 280) This echoes the findings in Axel Springer, in that photographs and commentary which expose a person’s private life cannot be considered to have been published in the name of public interest, if they were in fact made public only to “satisfy the curiosity of a particular readership” (Axel Springer, para 48). It is unsurprising in my view that Justice Mann “came to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (para 315).

Publicity is the very soul of justice. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.

Jeremy Bentham. legal and social reformer (1748 – 1832)

Will this case have a chilling effect on media freedoms? Writing for The Guardian, Professor of Financial Journalism Jane Martinson argues that “as long as the media reports accurately – making it clear when a suspect is under investigation for a serious crime, rather than arrested or charged – there should be no bar to the public knowing what is going on.” However, in my view this fails to take into consideration the complexity of public perception. In his concluding remarks, Justice Mann cited “the failure of the public to keep the presumption of innocence in mind at all times” as an aggravating factor against the BBC.

Other criticisms focus on the point that this case provides an undeserved blanket of anonymity to criminals, providing a way to keep allegations against possible abusers secret. Whether or not there is a reasonable expectation of privacy in a police investigation is in actuality fact-sensitive question, and is not capable of a universal answer (para. 237). According to Police Guidance on Relationships with the Media, the names or identifying details of suspects of crime should not be released by police to the press or public, unless special circumstances apply — such as threat to life, the prevention or detection of crime, or a matter of public interest.

The inevitable stigma attached to the extremely serious allegations against Sir Cliff made the invasion of privacy even worse. When an individual’s good reputation is tarnished, even wrongfully, it may never be recoverable. This is especially harmful to celebrities, who rely so heavily on public favour. In my view, Sir Cliff Richards v BBC is not a sweeping new precedent that stifles freedom of the press: it simply restates the statutory protections afforded by the Human Rights Act within the context of already-established European and English case law.

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.

-— Markus Breitenecker, CEO of Puls4

Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the individual? According to the Commercial Court of Vienna, YouTube is jointly responsible for copyright breaches from user-uploaded content. Is this einer Entscheidung, die das Internet revolutionieren könnte – a decision that could revolutionize the Internet?

To date, the unanimous opinion of European case law supports the position that YouTube is only a platform, an intermediary, a service provider, a neutral host, and so on – and therefore could not bear the responsibility for stolen content. That’s no longer true, says the Handelsgericht Wien (Vienna’s Commercial Court).

In its judgement of 6 June, the Court handed Austrian TV broadcaster Puls4 a key victory in its four-year legal battle with Google-owned YouTube. In 2014, Puls4 had sued YouTube for allowing Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-Commerce Directive 2000/31/EC, which in certain situations shields host providers from being held responsible for the actions of its users.

The Americans have a similar provision in the Online Copyright Infringement Liability Limitation Act (OCILLA), which forms part of the Digital Millennium Copyright Act. The OCILLA creates a conditional “safe harbor” for online service providers by shielding them for their own acts of direct copyright infringement, as well as from potential secondary liability for the infringing acts of others. In exempting internet actors from copyright infringement liability in certain scenarios,  both Article 14 and the Safe Harbor rule aim to balance the competing interests of the copyright holders, and those who use the content online.

Where YouTube is simply a host provider, it is the individual who uploaded the video in the first instance who is to blame for the theft of copyrighted material. This time, the Court disagreed with YouTube’s argument, and has found finding the media giant to be jointly responsible for the copyright infringement.

So, why should we care about the Puls4 case? Although Austrian case law is not binding for other European Union member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube. This may encourage similar decisions in the future which are based on the same line of argument.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that YouTube had effectively abandoned its neutral intermediary position and assumed an active role, which provided it with a knowledge of or control over certain data. In European legislative parlance, this is known as being a false hosting provider or false intermediary.

For years, many of us have assumed that YouTube is just a inanimate platform to which users upload videos. This case underscores that YouTube can no longer “play the role of a neutral intermediary” because of its “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.”

Puls4 and YouTube have until early July to petition the court, before it issues its binding ruling. In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision.  In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” It is therefore rather timely that YouTube began beta testing a feature called Copyright Match last month, a tool which allows users to scan the platform to locate full re-uploads of their original videos on other users’ YouTube channels.

Screenshot 2018-06-28 at 10.29.54 PM
some Puls4 content is still available on YouTube (at least, here in the UK).

The European Parliament seems to think the arguments about false hosting providers is best left to the courts to decide. Despite the E-Commerce Directive being more than 15 years old, there is no pressing need for a reform. In a recent report on the matter,  the European Parliament’s Committee on the Internal Market and Consumer Protection stated that while false hosting providers may not have been envisaged at the time of the adoption of the E-Commerce Directive in 2000, “the delineation between passive service providers caught by Article 14 and active role providers remains an issue for the court.”