From ‘Notice and Take Down’ to ‘Notice and Stay Down’: Risks and Safeguards for Freedom of Expression
Giancarlo Frosio (ed), The Oxford Handbook of Intermediary Liability Online, 2019, Forthcoming
19 Pages Posted: 14 Jan 2019 Last revised: 9 Aug 2019
Date Written: December 19, 2018
Despite the popular name, ‘notice and take down’ is only one of a variety of mechanisms that can be taken by an intermediary. A more appropriate and generic term is ‘notice and action’ (N&A), which encompasses the variety of mechanisms designed to eliminate illegal or infringing content from the Internet upon request of the rights holder. N&A is based on the relatively simple idea of a complaint mechanism that provides anyone who considers that their rights have been infringed (from the rights holder, third party, organization, etc.) with an easy way to seek relief. N&A is always initiated by way of a notice. The intermediary can respond to such a notice in a number of ways. It can react immediately by taking down or blocking access to content, or it can wait for a response from the content provider and react accordingly after hearing his defence. It can also act continuously against the content and any future infringements towards the same or merely similar content. The following sections describe the most commonly encountered notice and action mechanisms around the world, namely ‘notice and take down’ (NTD), ‘notice and notice’ (NN), and ‘notice and stay down’ (NSD). The analysis of each mechanism refers to specific national implementations. As all N&A mechanisms provide for the removal or blocking of content, each mechanism also constitutes a potential interference with the right to freedom of expression. The goal of this chapter is to examine how different types of N&A mechanisms amplify the risks to free expression and what safeguards they include to prevent such risks from manifesting themselves. The reader should note that the analysis provided here is not exhaustive. Rather, it serves to give an indication of how the presence of safeguards and their implementation can impact the right to freedom of expression.
Keywords: Notice and Action, notice and take down, notice and notice, notice and stay down, intermediary liability, freedom of expression, safeguards
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