How often you hear about people being prosecuted for falsely flagging content as offensive online? How often you hear about prosecutions about false copyright infringement notifications? The latter happens only very rarely in cases of blatant abuse, usually coupled with massive fraud and other crimes (never happens to automatic systems big IP holders use, they just write it off as innocent error in 100% of the cases), the former happens never.
That happens under the DMCA, prosecution under existing EU law and the new art11 and art13 wouldn't change much. Notice&Takedown does allow me to review any requests unlike the DMCA and Art13 requires human review in case of disputes. To my knowledge I can ignore entities that send me lots of useless Notices about third party content without legal consequence, I could even get a restraining order.
> the other party will be found guilty of disrupting your business
This all sounds quite lucrative for the lawyers and notaries. It remains disruptive, unsettling and expensive, not to mention unnecessary, for everyone else. Depending on which of the EU’s 28 member states’ courts one finds oneself dragged into, what you’re proposing could be years of distraction.
>It remains disruptive, unsettling and expensive, not to mention unnecessary
Nobody will do this, no sane legal department signs this off or approves of such behavior. Doing otherwise is a great way to incinerate their legal licenses. There are fines for behavior like that.
The best outcome for the suing party of such a scenario is a 5 minute court room appearance in which the judge slaps you with a restraining order and closes the case.
This has literally never been an escalating problem in european courtrooms to my experience because judges don't like that behavior and laws exist to prevent it.
In theory, there are. In practice, the abuse of both copyright and offensive content notifications is rampant and almost never punished. You have to get to real hardcore crime on massive scale before judicial system starts noticing, and even then it can take years and a lot of effort to get it to do anything. In most cases, such abuse is completely unpunished or gets slap on the wrist.
Because the only system that sites implement is the DMCA, which is largely compatible with Notice&Takedown in the EU but N&T has much softer requirements and Art13 now requires human review and a founded response from the copyright holder.
> the other party will be found guilty of disrupting your business by having you get into court for complaints without legal grounds.
Dubious. The other lawyer will claim they believed you had read the complaint and therefore that they were acting in good faith, and will see no punishment at all.
Burden of proof goes the other way here. This is why (one of the reasons) bogus DMCA complaints are never prosecuted. You need to prove that they believed you hadn't read the complaint and knowingly went after you anyway. We only persecute people for using the legal system maliciously, not accidentally incorrectly.
Assuming you can even find another party. What would stop anyone from creating a bunch of accounts under TOR and reporting thousands of links per hour? Good luck dealing with that.
Then I'll just ignore reports from Tor-based email domains? I don't think my email provider even accepts .onion for emails.
Or I just ban Tor users from creating reports, I'm not forced to enable abuse, if they have an actual complaint they can use their real internet connection. End of story.
If there is only one possible outcome, then that outcome should be clearly encoded in the law. The whole purpose of the court system is to provide interpretation when a law is vague - intentionally or not.
Remember that the law in europe tends to not function like the american law, including how courts work. The law is almost always vague and courts will have to interpret it.
Right - and that's what would drive US based companies just to shut down access to EU versus trying to comply. The uncertainty may not be worth it for small companies just trying to gauge demand.
They don't have to, they can simply wait a sufficient amount of time, usually a workday before they can enact further measures such as a C&D, which usually requires atleast 3 days before it can be considered received, after which you can take it to court.
If you are on holiday at that time, the court will in almost all cases instruct the other party to wait until you return at which point you can respond to the C&D.
No I'm not. No sane lawyer will even recommend dragging you to court for that because the judge will like fine the suer and find the sued party not guilty. No legal department I know would stand behind such a decision, it would be absolutely stupid to drag anyone to court. And most likely the Judge would even have the suing party pay for your expenses and damages incurred by such charges.
They don't need to drag you to court. They fine you using the new EU law, then you refuse to pay and you essentially decide to go to court instead of paying. Even if the company decides to drop the complaint in response either way you have to put a significant amount of effort to get to that point. Merely because you got an email at night.
This could happen 100x (or even thousands) for any mid-sized content platform. Most of these things are automated these days.
Besides there's no guarantee the parties will automatically act rationally and drop the claims of infringement before threatening court, merely because you claim you were sleeping. And you specifically said a judge won't pursue it, but even that is a maybe.
As mentioned multiple times, if they did this the judge would simply deny the entire fine and suit and they'd have to pay you damages and they'd likely receive a cease&desist order from the court.
You must inform parties of violations and allow for adequate time to react to them. Sending an email is already a nono for legal notices as there is no guarantee that the other party even received the mail properly.
The only way to properly and legally verifiably send them is to have a write-in mail which the receiver must sign with their signature before receiving. For everything else you might as well send money in an envelope ahead of time.
This is not a mere fact this is established procedure.
>Besides there's no guarantee the parties will automatically act rationally and drop the claims of infringement before threatening court, merely because you claim you were sleeping.
That's not what I've been saying, I've been saying that the infringement still needs to be dealt with but you can obviously not react when you are asleep.
Are you talking about this from experience?
or just plain (outside-EU) theory?
In practice though, most of EU gov-burocracy, incl. courts, prosecutors, statisticians, taxation, food-control, cultural/educational, whoever, esp. in recently-joined former-this-or-that countries, exist mostly in order to make work to each other = i.e. support/keep the whole system. Sadly, that is the reality.
And yes, they may charge u of (inexisting) offense (and even without sending u email), if that has any chance of putting oil in the cogwheels for some years. No matter what, the state does not lose.. it just somebody's nerves and taxpayers money wasted, but who cares.
A C&D in Germany is the usual way to resolve disputes, in which case you get a letter + bill + C&D form to sign, you can either comply and sign the C&D and pay the fine or ignore it or just sign the C&D but not pay the bill, in which case the other party can drop it, send more letters or take it to court.
If you take it to court and the court finds the complaint invalid then they can (and usually do) force the party that sent the C&D to pay your expenses and damages (ie, lost business due to you having to turn up to court) and usually a restraining order with hefty fines on it.
Atleast in germany it is expected that disputes are resolved via C&D and letter correspondence, court is a last resort.
To my knowledge, the court system in other countries varies but is not that different...
You might still get a letter from some law office to tell you about the violation and a hefty bill for providing this service. I suggest familiarizing yourself with the concept of "abmahnung" in Germany. Quite a racket.
I'm quite familiar with this concept considering I have gotten a total of 2 Abmahnungen, one of which I paid because I did violate a rule and the other dropped after I threatened to take it to court. You'd be surprised how few of the senders are willing to actually go to court if the outcome is not 100% clear because any case could result in a ruling against them and shut down their business.
are you seriously arguing for having to interact with the justice system for not responding to an email within an hour as anything but totally wrong? jesus christ, where am i?
No it doesn't, it means that if you get dragged to court because you got the email at 1AM and you were asleep, then you're not guilty of anything.
No judge will put up a fine for that.