(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Dutch government and leading market participants have adopted a new Notice-and-Take-Down Code of Conduct. The Code seeks to clarify the responsibilities of internet intermediaries (hosting providers in particular) when confronted with a notice that online information is punishable (under Dutch penal law) or unlawful. Reactions to the code are mixed. Many hosting providers have not signed the Code. Others have called it symbolic. In fact, the Code seems to obscure the current legal obligations of internet service providers with regard to punishable and unlawful material. Unfortunately, the Code does not even mention the right to freedom of expression and the issue of censorship.

Although the code has no legal status, it goes further than the Dutch law in a number of ways. The Code states that a notice of a public prosecutor that material is punishable cannot be questioned by a provider, because the public prosecutor has already established its illegal character.

However, a recent academic study of the Centre for Cybercrime Studies (Cycris), commissioned by the Dutch government, revealed the inadequacy of Dutch laws concerning Notice and Takedown. In particular, it found that the public prosecutor does not have an adequate legal instrument to order material to be taken down. The study concluded that "there are insufficient guarantees built into the process to protect the interests of Internet users and the information freedoms". The Dutch government has responded that it is reviewing the relevant laws, but it has completely ignored the problem in the context of this new Code.

In the case of notices of punishable and unlawful material from others than the public prosecutor the Code provides that an intermediary will remove the material if it is 'unequivocally' punishable or unlawful. If not, the party seeking removal can either seek involvement of law enforcement agencies or start a civil procedure. There is no explicit mention of a put-back procedure. The Code does state that intermediaries have to be careful not to remove more content than the notice points to. The Code does not change the circumstances under which rights holders can retrieve identifying data of alleged infringers of copyright. For this reason, BREIN, the representative of the rights holders in the Netherlands, has made clear it sees the current Code as unsatisfactory.

To complicate matters, the Code introduces the concept of 'undesirable' or 'harmful' material. It defines this as material that is not illegal or unlawful under Dutch law, but material that a provider itself does not want to host, because of its 'undesirable' or 'harmful' character. The Code states that the provider is free to develop such criteria and treat notices of 'undesirable' or 'harmful' material the same way as notices of illegal material. Clearly, government involvement in this part of the Code of Practice is problematic from the perspective of freedom of expression. The Code does not clarify which categories of content can legitimately be considered as 'undesirable' or 'harmful' by an intermediary. And unfortunately, the Code does not explicitly forbid law enforcement agencies to send notices of 'undesirable' or 'harmful' material, whereas such notices would seem to be illegal.

The Code was adopted in the context of the National Infrastructure Cybercrime, a public private partnership, which includes several branches of the Dutch Government, major broadband providers such as KPN, XS4all, and cable providers. There is no official list of participants in the Code.

Notice-And-Take-Down Code of Conduct (9.10.2008)
http://www.samentegencybercrime.nl/UserFiles/File/NTD_Gedragscode_Opma...

Dutch 'Notice-and-Take-Down' Code of Conduct issued (14.10.2008)
http://www.saferinternet.org/ww/en/pub/insafe/news/articles/1108/notic...

Cycris Research on art. 54a of the Dutch Penal Code (13.05.2008)
http://www.cycris.nl/news/7/39

Hosters en Brein sluiten piraterij-compromis (In Dutch only) (9.10.2008)
http://webwereld.nl/articles/53058/hosters-en-brein-sluiten-piraterij-...

(Contribution by Joris van Hoboken - EDRi-member Bits of Freedom -Netherlands)