Thursday, 16 October 2014

Notice & Takedown

This is topical as there is yet another type of material to which it can apply (revenge porn), and so yet more that hosting companies have to consider. Thankfully A&A have not had any credible notices, but I do feel strongly about due legal process not being bypassed, so I have views on this.

What is Notice & Takedown

Basically, there are situations where something wrong or bad is hosted somewhere and available on the Internet. The most obvious case is something that violates copyright. In such a case someone has, without permission of copyright holder, copied something (e.g. music, video, etc) to a web server and others can access it on that web server. In some cases the access itself may not be a breach of copyright, but the copying to the server, and the "making available" would be. In some case cases this is just a civil matter. In some cases the content is criminally illegal to possess or publish even.

In such cases there are a number of steps the wronged person (e.g. copyright holder) can take.
  1. They could take the infringer to court (possibly after getting a court order to get their identify) and on winning the case the infringer has to remove the content. This is, of course, the proper course of action when someone does you wrong - you take action against the person that has done your wrong. It is time consuming and can be costly.
  2. They could get a court order against the hosting company ordering that they remove the content. This is a legal process with proper oversight of a judge, but is time consuming and costly. This is a notice & takedown but is just the hosting company acting on a court order. It is not ideal as the action is against someone that has done no wrong - the hosting company.
  3. They could get a court order against one or more ISPs that provide access to the content and have them block it. This only works for copyright as there is a specific clause in the copyright legislation. This is what was used controversially and somewhat ineffectively to block piratebay. It does not work well (at all?) and again is taking action against an innocent party.
  4. They can simply send notice to the hosting company telling them that there is infringing/illegal material on their site. This is where we are talking of notice & takedown procedures at their worst.
Is the hosting company liable?

This is where the fun starts. There is content, which is likely to be the case for this revenge porn, and other cases, where the hosting company is not at all liable for the content they did not put on a site up until they have actual knowledge of it.

So, in such cases, you just have to tell them that the content is there and illegal or infringing, and they really have very little choice but to take it down. If they don't and later it is shown to be illegal, they find themselves liable because it stayed there after they had knowledge that it was there.

This is especially tricky for a notice of a child abuse image, as viewing such is itself illegal - so if you get a notice of child abuse images you cannot even look at it to see if the notice is valid in your opinion - you have to believe the notice blindly and take it down.

So what's the problem?

This is where I have been trying to consolidate my views on the subject. The real problem I see here is the scope for abuse of this process.

Yes, I can see that if someone has done something wrong, whether posting copyright material, revenge porn, or child abuse images, it is sensible to have a way to expeditiously remove that content. I understand that.

But there will be cases where the accusations are false. This happens all of the time, either maliciously or mistakenly. In such cases there has been a penalty action (removal of content) with no fair or legal process to decide if there was cause for a penalty or what penalty applied. It is bypassing all legal process and going straight to sanctions, and does not even involve a court.

It also puts the hosting company on the spot. Should they look at the content (what if child abuse?) and decide, or should they blindly obey all notices? If they do look, are they qualified to decide? If they blindly follow all notices, does that put them in breach of contract with their customers? It could simply damage their reputation, which could be worse.

So, in my opinion, if someone (hosting company) has no choice but to act on a notice, then the accuser should have to face all consequences if the notice was not valid. They should have to pay damages and costs to hosting company and original poster of the content. By not valid, I mean that the accusation does not lead to proper legal action concluding it was valid within a sensible time frame.

Facing consequences for a false notice should be no deterrent to all valid accusations. But it does mean that they have to be prepared to follow through - taking civil action against the infringer or for criminal matters, proceeding with the prosecution. Anyone not prepared to follow through should not have this short cut to due legal process as a tool at their disposal. I suppose in cases where the infringer cannot be identified or action taken this would mean a court order, where the court assesses the case and orders the hosting company to keep it removed - but only where the infringer cannot be actioned directly.

That's my view - what do others think?


  1. I'd like to see the elimination of #3 (the involvement of third parties in such disputes) and some sort of "safe harbour" protection for investigative purposes, so you would be specifically permitted to verify complaints of illegal content.

    Some consequences for wrongful takedown notices would be a big help, I think, making people more wary of mass-mailing auto-generated takedown demands without checking. Microsoft just got in trouble over this again, after triggering mass-takedowns of blog posts about the Windows 10 beta, but they have apparently been embarrassed in the past by absurd demands to delete, in some cases, their own websites from Google's index as "copyright violations".

    Perhaps establishing a figure for statutory damages for wrongfully issuing or rejecting takedown demands would help?

  2. Sounds sensible. With power ("Take down this content!") comes responsibility (that the content should be removed) and therefore consequences if the power is used incorrectly.

  3. FWIW, there are exemptions in the law where you are having to handle kiddie porn as a legitimate part of your job (checking that what you've been asked to take down actually is as described would almost certainly count).

    However, the exemptions require you to inform the police, and my concern is that you may end up causing yourself an untold amount of hassle by doing so.

    I looked into this stuff many years ago since I'm involved in web filtering for schools, so there's a reasonable chance myself or colleagues could come across this kind of material as part of our work.

  4. ACPO/CPS Memorandum of Understanding regarding investigating child abuse images: