[Manila Principles] EU DSM "online platforms" consultation -- guide for navigating the online questionnaire

Emma Llanso ellanso at cdt.org
Thu Dec 3 11:41:13 PST 2015

Dear all,

As you may have heard, the European Commission is currently conducting a 
consultation relevant to intermediary liability policy, as part of the 
Digital Single Market strategy.  The theme of the DSM is "bringing down 
barriers to unlock online opportunities" and covers a variety of policy 
topics, with the aim of moving the EU from 28 national markets to a 
single one.

As part of this strategy, the Commission has launched a consultation on 
"online platforms", a term which includes a broad range of websites and 
online services.  The consultation raises a number of pointed questions 
about the intermediary liability framework in the EU, including the 
sufficiency of definitions in the E-Commerce Directive, whether 
particular types of content merit different notice-and-action 
procedures, and whether action should include "take down and stay down" 
or prospective monitoring for flagged content. (This consultation also 
covers other topics, including individual privacy/data protection, data 
localization, and open data initiatives, as well as the "collaborative 
economy" and reputation rating/ranking systems.)

CDT thinks it is crucial that the Commission hear from advocacy 
organizations, researchers, and others who can express the fundamental 
role of strong intermediary liability protections in supporting freedom 
of expression online.  Responses to the consultation are due *30 
December 2015* and must be filed through the Commission's webform 
<https://ec.europa.eu/eusurvey/runner/Platforms/>. Respondents may also 
submit position papers to the Commission by sending them to 

If you or your organization are interested in providing input into the 
consultation, the rest of this email includes information that may be 
useful to you in doing so. *NB:* If you wish to respond as an 
organization (civil society, trade association, think tank, company, 
etc.), *your org must be registered in the Transparency Register* of the 
European Commission and the European Parliament. Information about how 
to register is available here 
A response from a non-registered organization will be counted and 
reported as a response from an individual.

The full text of the consultation can be downloaded as a PDF (attached), 
but not every question/response option in the PDF is actually available 
to all respondents.  We've prepared a guide to responding to the 
consultation (also attached), which indicates when the availability of 
text-responses is contingent on providing a particular answer to a 
multiple choice question.

For an even shorter guide to responding on intermediary liability 
issues, specifically, here's what I consider the key questions/points:

- Section 2, "Online Platforms": Responding to the Commission's broad 
definition of "online platform"

- Section 3, "Tackling illegal content online and the liability of 
online intermediaries": Responding to the prompt at the end of the 
section for "general comments" on intermediary liability and the topics 
covered in the section (5000-character limit, including spaces)

Section 3 also includes questions about whether the E-Commerce 
Directive's reference to "mere technical, automatic, and passive" 
activity by intermediaries is sufficiently clear, whether additional 
categories of intermediaries should be established, whether different 
categories of illegal content require different approaches to notice 
and/or action, whether "action" should include "takedown and staydown", 
and whether there should be imposed specific duties of care for certain 

Some of these topics only allow for text responses if you select a 
particular answer (e.g. a response of "yes" to "Do you think that 
further categories of intermediaries should be established" yields 1500 
characters to explain the answer, but no space is provided to explain a 
response of "no".)  So it is a good idea to review the whole section of 
the questionnaire to see what issues are being raised, even if you are 
only responding in the 5000-character "general comment" box.

CDT will be filing comments addressing many of the topics in the 
consultation, with a major focus on the intermediary liability section.  
I hope the attached guide is useful to you, and please let me know if 
you have any questions or comments about it.


Emma J. Llansó
Director, Free Expression Project
Center for Democracy & Technology
202-407-8818 | @cendemtech | @ellanso

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