Content area
Abstract
Even though the safe harbor pursuant to Article 14 of the ECD is said to remain intact,8 the landscape is nowadays supplemented by a new Directive on copyright in the Digital Single Market (hereafter "DSM directive"),9 an amendment to the Audio-visual Media Services Directive (hereafter "amended AVMSD")1C and a guidance on the interpretation of the Unfair Commercial Practices Directive (hereafter "UCPD Guidance").11 These pieces of legislation generate further layers of obligations on online intermediaries such as monitoring obligations, duties of diligence, reporting and flagging, requests to cooperate with righthold-ers, requirements to conclude licensing agreements, obligation to adopt appropriate measures to prevent unlawful content and calls for them to design platforms in a way that prevents consumers from being misled. [...]this new emerging framework is strongly characterized by problem-driven approach a to regulation depending on the kind of content at stake.12 Theoretically, the new regime for intermediaries would have to function in a complementary manner with the current ECD conditional liability framework. [...]it is suggested that Article 13 establishes a monitoring obligation to actively filter third-party content to identify and prevent copyright infringements.22 Such monitoring shall be implemented via appropriate and proportionate content recognition technologies. MISLEADING CONTENT In May 2016, the Commission outlined strategies for promoting cross-border e-Commerce.51 Underlined by the necessity to boost human confidence in the digital market, the Commission updated the 2009 Guidance document on the application and implementation of the Unfair Commercial Practices Directive (UCPD Guidance).52 The guidance proceeds to clarify some concepts and provisions of the directive itself, but more importantly aims at demonstrating the interaction between the UCPD and other EU legislation. [...]the UCPD Guidance makes it clear that the rules on unfair commercial practices are also applicable to the new business models that emerge in the digital environment, namely online commercial platforms.53 Turning to the guidance itself, it is noted that an online platform is required to respect the UCPD when it meets the requirements of being a "trader" under Article 2(b) UCPD.54 The Guidance emphasizes that in deciding whether an online platform falls within the ambit of a "trader" a case-by-case assessment must be employed. [...]of this, online platforms lose not only the safe harbor shield as per Article 14 of the ECD, but also risk coming into conflict with the ban on general monitoring pursuant to Article 15 of the ECD.