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

Daphne Keller daphnek at law.stanford.edu
Fri Dec 18 14:50:19 PST 2015

For anyone planning to submit responses to the DSM consultation -- which,
please do --  heads up about a technical glitch that has made some
responses get lost.  It should be fixed soon, but here's
Techdirt's explanation if you want to check.

(Apologies for reposting, anyone who got this twice.)

---------- Forwarded message ----------
From: Emma Llanso <ellanso at cdt.org>
Date: Thu, Dec 3, 2015 at 11:41 AM
Subject: [Manila Principles] EU DSM "online platforms" consultation --
guide for navigating the online questionnaire
To: manilaprinciples at eff.org

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

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
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 intermediaries.

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 & Technology202-407-8818 | @cendemtech | @ellanso

ManilaPrinciples mailing list
ManilaPrinciples at eff.org

Daphne Keller
Director, Intermediary Liability
Center for Internet and Society
Stanford Law School
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