ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

Erhvervs-, Vækst- og Eksportudvalget 2017-18
ERU Alm.del Bilag 284
Offentligt

NOTE

18. juni 2018

The Danish

Government’s

response to the Consultation on measures

to further improve the effectiveness of the fight against illegal content

online

The Danish government agrees that it is necessary to ensure effective

procedures for notification and action on illegal content on the internet

inter alia through stronger cooperation between the involved parties. The

Danish Government stresses that illegal content is not acceptable. When

illegal content is identified, effective action should be taken to remove it

and prevent it from being uploaded again.

The Danish Government has a strong focus on fighting terrorist content

and enhancing consumer safety through protection against dangerous

products. Moreover the effective enforcement of intellectual property

rights on the internet is an important task, as the increasing numbers of

infringements have negative consequences for innovation and growth.

The Danish Government would like to highlight the following central

aspects which should be taken into account when fighting illegal content

online:



A clear, simple and coherent framework is needed. Obligations in

existing regulation should be taken into account when considering

new measures in order to limit overlapping regulation.

The free and open internet as well as the fundamental rights and

civil liberties of enterprises, rights holders and individuals in Eu-

rope should be respected.

Procedures for notice and action should be effective, and at the

same time proportionate to the violation in question. They should

not create unnecessary burdens or unduly hinder the development

of new businesses and business models.

Effective safeguards are needed to prevent the misuse of notifica-

tions and the removal of legal content.

In the continuous work focus should be on the voluntary collabo-

ration practices in the different sectors in the internet value chain.



The Danish Government’s perspectives on these

aspects are elaborated in

the following.

ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

Clear and simple procedures and rules

The Danish Government supports clarifying and applying existing proce-

dures and principles for tackling illegal content in a harmonized and non-

discriminatory manner across Europe, in order to strengthen their effec-

tiveness and the legal certainty of businesses, hosting service providers

and consumers.

A clear, coherent and simple framework is important for the effectiveness

of all efforts made to tackle illegal content.

Effective and proportional safeguards

The Danish Government emphasises that stronger requirements on host-

ing service providers should not create unnecessary burdens and barriers

for especially small and medium-sized enterprises. Notice and action pro-

cedures and other obligation related hereto should be proportionate to the

violation in question and should not unduly hinder the development of

new businesses and business models.

It should be avoided that legal content is affected or removed as a result

of notice and action procedures. In some cases, it is apparent that notified

content is illegal. In other cases, notifications may be unjustified or the

legality of the content may be unclear or contested. In such cases, the

content owner will have to rely

on the hosting service provider’s judicial

competences. Effective safeguards such as counter-notice procedures and

transparency are needed to prevent the misuse of notifications and the

removal of legal content. This is especially relevant when automated

tools are applied as proactive measures.

Further to this point, the Danish Government recalls the need to respect

the free and open internet and the fundamental rights and civil liberties of

enterprises, rights holders and individuals in Europe. The respect for

these fundamental rights should be included in the proportionality test,

and the Commission should ensure concrete measures to protect these

rights when considering further steps.

Further measures

The Danish Government favours increased coordination and cooperation

between authorities, relevant organisations and hosting service providers

and among hosting service providers themselves in order to improve the

tackling of illegal content. We see the promotion of the cooperation

mechanisms such as appointments of point of contact, technical interfaces

and use of trusted flaggers as well as voluntary enforcement measures

such as Code of Conducts, Memorandum of Understandings e.g. as effec-

tive and flexible tools in this regard.

ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

Considering that the Commission has issued both a communication

(COM(2017) 555) and a recommendation (C(2018) 1177 final) in less

than a year, the Danish Government would prefer if the effects of these

recent initiatives materialise before deciding on new horisontal measures.

As noted in the communication and the recommendation, the fight against

illegal content is improving continuously and it will be fruitful to allow

these positive developments to unfold first.

In this regard the Danish Government notes that the revised Audiovisual

Media Services Directive will introduce new sector-specific legislation

with regard to illegal and harmful content on video-sharing platforms.

Relevant Danish progress since the Recommendation

The Danish Government is currently identifying and assessing possible

further steps to take in line with the Recommendation on further

measures to tackle illegal content online (C(2018) 1177 final) in order to

effectively tackle illegal content on the internet.

As of May 2018,

the Danish Government’s taskforce

for criminal investi-

gation on Intellectual Property Rights is established as a permanent struc-

ture. The taskforce investigates existing and new infringements of copy-

right, trademark, design rights etc. focusing particularly on the organized

criminal activities.

In the following we will give a brief description of which mechanisms are

already in place regarding illegal content. First of all it should be stressed

that there is no separate statutory scheme for notice and action procedures

in place in Denmark. In addition to the general rules in Act No. 227 of 22

April 2002 on certain legal aspects of information society services, in

particular electronic commerce, there are a number of procedures in spe-

cific areas in place. These procedures as well as other initiatives will be

described in the following.

Child pornography blocking filter

A measure in order to combat sexual abuse of children is the so-called

“child-pornography-blocking-filter”. The filter has been developed by

Danish National Police in co-operation with the majority of Danish inter-

net suppliers and the Danish division of Save the Children. The filter

blocks the access to websites with allegedly child pornographic material.

The blocking-filter is put into place based on a specific agreement be-

tween the Danish National Police and each individual internet supplier.

From the agreement follows

–

among others

–

that the Danish National

Police regularly pass on information to the respective internet supplier

about websites which, according to the Danish National Police, may con-

ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

tain child pornographic material criminalized pursuant to the Danish

Criminal Code. At the same time the police encourage the internet sup-

plier to block access to the website in question.

In so far as the respective internet supplier decides to block access to the

website in question, the internet user who may try to access the website,

can be met with an official page (made available by the Danish National

Police) explaining that the person is trying to access a page that has been

blocked, because it has been identified as containing allegedly illegal

material.

Danish rules relating to the “.dk” domain

DIFO (Danish Internet Forum), who owns DK Hostmaster, is in charge of

the administration of

the domain “.dk”

and the rules relating to the do-

main.

DIFO’s rules for suspension, blocking or deletion of domain names are

based on Act No. 164 of 26 February 2014 on Internet Domains

https://www.retsinformation.dk/forms/r0710.aspx?id=161869

and DK

Hostmaster’s

terms and conditions for the right of use to a .dk domain

name version 09 of 19 December 2017

https://www.dk-

hostmaster.dk/en/general-conditions.

Complaints/requests for suspension, blocking or deletion may address:



Obviously illegal action infringing significant safety considera-

tions and societal considerations.

Obvious risk for economic crime, compromise of IT equipment

(phishing and malware distribution) and grossly insulting content.

Typosquatting

DIFO’s/DK Hostmaster's decisions under the general conditions may be

appealed to an independent Appeal Board established under the Act on

Internet Domains, cf. sections 26-27.

In any event, all cases concerning registration etc. of domain names may

be brought before a court of law.

IPR and voluntary cooperation schemes

Danish right holders and most internet service providers have entered into

a specific agreement concerning blocking of websites. The agreement

primarily relates to copyright and related rights. Blocking of websites can

also affect other type of rights, e.g. trademarks. The code of conduct

means that when an ISP by a Danish court has been ordered to block the

access to an illegal website other ISPs will voluntarily block the access to

the same website.

http://www.teleindu.dk/wp-content/uploads/2013/01/TI-code-of-conduct-

revideret-december-2016-public-1.pdf

ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

The District Court of Frederiksberg has recently (5 December 2017) es-

tablished that so-called

“dynamic blocking injunctions” can be allowed

under Danish law. In this case the court referred to the agreement men-

tioned above.

The Danish Ministry of Culture is engaged in several voluntary coopera-

tion schemes such as a Dialogue-Forum, where a wide range of private

companies (such as Google, MasterCard, Microsoft, ISPs, CMOs etc.)

have agreed on a set of principles to promote a more lawful internet. The

work has among others things lead to a code of conduct in the advertising

sector, which aims at stopping advertisement on illegal websites. Another

initiative is the ShareWithCare-campaign, which focuses on guiding the

consumers from illegal to legal by using the text on blocked webpages to

guide consumers to legal content and at the same time informing them

about copyright etc.

The Danish

Patent and Trademark Office offer a ‘Hotline on Enforce-

ment and Counterfeiting’.

Consumers and small and medium-sized

busi-

nesses can obtain initial guidance in specific cases of counterfeiting

which will provide them with a better basis for deciding whether to pur-

sue their case or not and possible lines of action through civil and crimi-

nal enforcement measures. The hotline will provide guidance to its users,

but will not perform notification/reporting to intermediaries or the police

on behalf of its users.

Measures to counter terror content online

The Danish Security and Intelligence Service (DSIS) has recently estab-

lished an Internet Referral Unit (IRU). The unit is tasked with identifying

extremist content online and is currently working on establishing the le-

gal framework and working arrangements with online service providers,

internet service providers and the EU IRU to ensure efficient removal of

terrorist content and illegal hate speech online.

The Danish National Police is also working on establishing cooperation

with the telecommunications providers in Denmark in order to implement

an internet blocking filter that will enable blocking of the access from

Denmark to websites that contain terrorist content etc. It is expected that

the blocking filter will be operational by the end of 2018.

Furthermore, The Danish Administration of Justice Act was recently

amended, to enables the Danish police by court order to block foreign

websites if the website is used for actions that are covered by the Danish

Penal

Code’s provisions on terrorism, including

the explicit condoning of

terrorist actions, the promotion of terrorism, financing of terrorism etc.

ERU, Alm.del - 2017-18 - Bilag 284: Notat om dansk høringssvar om foranstaltninger til at forbedre bekæmpelsen af ulovligt indhold på internettet

Finally, the DSIS is launching a digital mapping project that will ensure a

more systematic mapping of extremists’

activities on open social media

networks. The purpose of the project is to give the Danish authorities a

more comprehensive, exact and updated picture on the role that social

media plays particularly in relation to radicalisation and hate crimes in

Denmark. The knowledge gathered in this project will e.g. be used for

adapting and strengthening the prevention efforts carried out by minis-

tries, agencies, municipalities, the police, civil society participants and

others. The project is expected to be completed in the course of 2018.