18 Amendments of Tomasz FRANKOWSKI related to 2020/0361(COD)
Amendment 258 #
Proposal for a regulation
Recital 18
Recital 18
(18) The exemptions from liability established in this Regulation should not apply where, instead of confining itself to providing the services neutrally, by a merely technical and, automatic and passive processing of the information provided by the recipient of the service, the provider of intermediary services plays an active role of such a kind as to give it knowledge of, or control over, that information. Those exemptions should accordingly not be available in respect of liability relating to information provided not by the recipient of the service but by the provider of intermediary service itself, including where the information has been developed under the editorial responsibility of that provider. The provider of intermediary services is considered to play an active role when it optimises, promotes, classifies, organises and references the content, regardless of whether this is automated or not.
Amendment 347 #
Proposal for a regulation
Recital 34
Recital 34
(34) In order to achieve the objectives of this Regulation, and in particular to improve the functioning of the internal market and ensure a safe and transparent online environment, it is necessary to establish a clear, effective and balanced set of harmonised due diligence obligations for providers of intermediary services. Those obligations should aim in particular to guarantee different public policy objectives such as the safety and trust of the recipients of the service, including minors and vulnerable users, protect the relevant fundamental rights enshrined in the Charter, to ensure meaningful accountability of those providers and to empower recipients and other affected parties, whilst facilitating the necessary oversight by competent authorities.
Amendment 381 #
Proposal for a regulation
Recital 40
Recital 40
(40) Providers of hosting services play a particularly important role in tackling illegal content online, as they store information provided by and at the request of the recipients of the service and typically give other recipients access thereto, sometimes on a large scale. It is important that all providers of hosting services, regardless of their size, put in place user-friendly notice and action mechanisms that facilitate the notification of specific items of information that the notifying party considers to be illegal content to the provider of hosting services concerned ('notice'), pursuant to which that provider can decide, based on its own assessment, whether or not it agrees with that assessment and wishes to remove or disable access to that content ('action'). Provided the requirements on notices are met, it should be possible for individuals or entities to notify multiple specific items of allegedly illegal content through a single notice. It may also be possible for online platforms to prevent a content that has already been identified as illegal and that has been removed on the basis of a prior notice, from reappearing. The obligation to put in place notice and action mechanisms should apply, for instance, to file storage and sharing services, web hosting services, advertising servers and paste bins, in as far as they qualify as providers of hosting services covered by this Regulation.
Amendment 391 #
Proposal for a regulation
Recital 42
Recital 42
(42) Where a hosting service provider decides to remove or disable information provided by a recipient of the service, for instance following receipt of a notice or acting on its own initiative, including through the use of automated means, that provider should prevent future uploads of already notified illegal content resulting from a valid notice and action procedure and should inform the recipient of its decision, the reasons for its decision and the available redress possibilities to contest the decision, in view of the negative consequences that such decisions may have for the recipient, including as regards the exercise of its fundamental right to freedom of expression. That obligation should apply irrespective of the reasons for the decision, in particular whether the action has been taken because the information notified is considered to be illegal content or incompatible with the applicable terms and conditions. Available recourses to challenge the decision of the hosting service provider should always include judicial redress.
Amendment 409 #
Proposal for a regulation
Recital 46
Recital 46
(46) Action against illegal content can be taken more quickly and reliably where online platforms take the necessary measures to ensure that notices submitted by trusted flaggers through the notice and action mechanisms required by this Regulation are treated with priority, without prejudice to the requirement to process and decide upon all notices submitted under those mechanisms in a timely, diligent, effective and objective manner. Such trusted flagger status should only be awarded to entities, and not individuals, that have demonstrated, among other things, that they have particular expertise and competence in tackling illegal content, that they represent collective interesthave significant legitimate interest and a proven record in flagging illegal content with a high rate of accuracy and that they have demonstrated their competence in detecting, identifying and notifying illegal content or represent collective interests or general interest to prevent infringements of Union law or provide redress and that they work in a diligent and objective manner. Such entities can also be public in nature, such as, for terrorist content, internet referral units of national law enforcement authorities or of the European Union Agency for Law Enforcement Cooperation (‘Europol’) or they can be non- governmental organisations and semi- public bodies, such as the organisations part of the INHOPE network of hotlines for reporting child sexual abuse material and organisations committed to notifying illegal racist and xenophobic expressions online. For intellectual property rights, organisations of industry andindividual right-holders, their representatives, duly mandated third parties organisations of industry and other independent entities that have a specific expertise and act in the best interests of right- holders could be awarded trusted flagger status, where they have demonstrated that they meet the applicable conditions. The same should be granted to applicants within the meaning of Regulation (EU) No 608/2013 or in case of complaints pursuant to Regulation (EU) 2019/1020 so as to ensure that existing rules regarding custom enforcement or consumer protection are effectively implemented to online sale. The rules of this Regulation on trusted flaggers should not be understood to prevent online platforms from giving similar treatment to notices submitted by entities or individuals that have not been awarded trusted flagger status under this Regulation, from otherwise cooperating with other entities, in accordance with the applicable law, including this Regulation and Regulation (EU) 2016/794 of the European Parliament and of the Council.43 __________________ 43Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53
Amendment 424 #
Proposal for a regulation
Recital 47
Recital 47
(47) The misuse of services of online platforms by frequently providing manifestlyor disseminating illegal content or by frequently submitting manifestly unfounded notices or complaints under the mechanisms and systems, respectively, established under this Regulation undermines trust and harms the rights and legitimate interests of the parties concerned. Therefore, there is a need to put in place appropriate and proportionate safeguards against such misuse. Information should be considered to be manifestly illegal content and notices or complaints should be considered manifestly unfounded where it is evident to a layperson, without any substantive analysis, that the content is illegal respectively that the notices or complaints are unfounded. Under certain conditions, online platforms should temporarily suspend their relevant activities in respect of the person engaged in abusive behaviour. This is without prejudice to the freedom by online platforms to determine their terms and conditions and establish stricter measures in the case of manifestly illegal content related to serious crimes. For reasons of transparency, this possibility should be set out, clearly and in sufficiently detail, in the terms and conditions of the online platforms. Redress should always be open to the decisions taken in this regard by online platforms and they should be subject to oversight by the competent Digital Services Coordinator. The rules of this Regulation on misuse should not prevent online platforms from taking other measures to address the provision of illegal content by recipients of their service or other misuse of their services, in accordance with the applicable Union and national law. Those rules are without prejudice to any possibility to hold the persons engaged in misuse liable, including for damages, provided for in Union or national law.
Amendment 434 #
Proposal for a regulation
Recital 49
Recital 49
(49) In order to contribute to a safe, trustworthy and transparent online environment for consumers and other users, as well as for other interested parties such as competing traders and holders of intellectual property rights, and to deter traders from selling he selling and dissemination of products orand services in violation of the applicable rules, online platforms allowing consum all providers of intermediary services, including hosting providers, domain name registrars, providers tof conclude distance contracts with tratent delivery networks, proxy and reverse proxy providers, online marketplaces, online payment service providers and online advertising service providers should ensure that such tradtheir business customers are traceable. The tradbusiness customer should therefore be required to provide certain essential information to the online platform or provider of intermediary services, including for purposes of promoting messages on or offering products. That requirement should also be applicable to tradbusiness customers that promote messages on products or services on behalf of brands, based on underlying agreements. Those online platformProviders of intermediary services should store all information in a secure manner for a reasonable period of time that does not exceed what is necessary, so that it can be accessed and verified, in accordance with the applicable law, including on the protection of personal data, by the providers of intermediary services, public authorities and private parties with a legitimate interest, including through the orders to provide information referred to in this Regulation.
Amendment 444 #
Proposal for a regulation
Recital 50
Recital 50
(50) To ensure an efficient and adequate application of that obligation, without imposing any disproportionate burdens, the online platforms covproviders of intermediary services should make reasonable efforts to verify the reliability of the information provided by the traders concernedir business customers, in particular by using freely available official online databases and online interfaces, such as national trade registers and the VAT Information Exchange System45 , or by requesting the traders concernedir business customers to provide trustworthy supporting documents, such as copies of identity documents, certified bank statements, company certificates and trade register certificates. They may also use other sources, available for use at a distance, which offer a similar degree of reliability for the purpose of complying with this obligation. However, the online platforms covproviders of intermediary services should not be required to engage in excessive or costly online fact-finding exercises or to carry out verifications on the spot. Nor should such online platformproviders of intermediary services, which have made the reasonable efforts required by this Regulation, be understood as guaranteeing the reliability and accuracy of the information towards consumer or other interested parties. Such online platforms shoulproviders of intermediary services should update the information they hold on a risk-sensitive basis, and at least once a year and also design and organise their online interface in a way that enables tradheir business customers to comply with their obligations under Union law, in particular the requirements set out in Articles 6 and 8 of Directive 2011/83/EU of the European Parliament and of the Council46 , Article 7 of Directive 2005/29/EC of the European Parliament and of the Council47 and Article 3 of Directive 98/6/EC of the European Parliament and of the Council48 . __________________ 45 https://ec.europa.eu/taxation_customs/vies/ vieshome.do?selectedLanguage=en 46Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council 47Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) 48Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers
Amendment 670 #
Proposal for a regulation
Article 2 – paragraph 1 – point e a (new)
Article 2 – paragraph 1 – point e a (new)
(ea) ‘business customer’ means: - legal entities, except any entity which qualifies as a large undertaking as defined in Article 3(4) of Directive 2013/34 of the European Parliament and the Council; - any natural person that purchases a type or amount of service indicative of, or otherwise indicates, the intent to operate a business online or contracts for the purchase of more than €10,000 of services provided by the intermediary service provider in a one-year period;
Amendment 672 #
Proposal for a regulation
Article 2 – paragraph 1 – point f – introductory part
Article 2 – paragraph 1 – point f – introductory part
(f) ‘intermediary service’ means one of the following information society services:
Amendment 678 #
Proposal for a regulation
Article 2 – paragraph 1 – point f – indent 3 a (new)
Article 2 – paragraph 1 – point f – indent 3 a (new)
- an online platform as defined in point (h) of this Regulation;
Amendment 688 #
Proposal for a regulation
Article 2 – paragraph 1 – point g
Article 2 – paragraph 1 – point g
(g) ‘illegal content’ means any information,, which, in itself or by its reference to an activity, including the sale of products or provision of servicesillegal content, products, services or activity, is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law;
Amendment 758 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) upon obtaining such knowledge or awareness, acts expeditiously toand permanently removes or to disables access to the illegal content; expeditiously means immediately or as fast as possible and in any event no later than within 30 minutes where the illegal content pertains to the broadcast of a live sports or entertainment event.
Amendment 775 #
Proposal for a regulation
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. Paragraph 1 shall not apply when the provider of intermediary services engages in illegal activities.
Amendment 784 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
Providers of intermediary services shall not be deemed ineligible for the exemptions from liability referred to in Articles 3, 4 and 5 solely because they carry out voluntary own-initiative investigations or other activities aimed at detecting, identifying and removing, or disabling of access to, illegal content, or take the necessary measures to comply with the requirements of Union law, including those set outwhen they engage in or facilitate illegal activities or when they do not comply with the due diligence obligations laid down in this Regulation.
Amendment 965 #
Proposal for a regulation
Article 12 a (new)
Article 12 a (new)
Amendment 1012 #
Proposal for a regulation
Article 13 a (new)
Article 13 a (new)
Amendment 1133 #
Proposal for a regulation
Article 15 b (new)
Article 15 b (new)
Article 15b Notification of suspicions of serious criminal offences 1. Where a provider of hosting services becomes aware of any information giving rise to a suspicion that a serious criminal offence involving a threat to the life or safety of persons has taken place, is taking place or is likely to take place, it shall promptly inform the law enforcement or judicial authorities of the Member State or Member States concerned of its suspicion and provide all relevant information available. 2. Where provider of hosting services cannot identify with reasonable certainty the Member State concerned, it shall inform the law enforcement authorities of the Member State in which it is established or has its legal representative or shall inform Europol. For the purpose of this Article, the Member State concerned shall be the Member State where the serious criminal offence is suspected to have taken place, to be taking place or to likely take place, or the Member State where the suspected offender resides or is located, or the Member State where the victim of the suspected serious criminal offence resides or is located. For the purpose of this Article, each Member State shall notify to the Commission the list of its competent law enforcement or judicial authorities.