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Copyright groups say European Union’s Digital Services Act should do more to stop piracy sites operating anonymously

By | Published on Thursday 22 April 2021

European Union

An alliance of trade groups representing the copyright industries – including the music business – has called on the European Union to beef up an element of its proposed Digital Services Act that would obligate internet companies to do more to confirm the identity of their business customers.

The DSA only currently proposes introducing new obligations in that domain to online marketplaces. The copyright industries reckon it should also apply to other internet intermediaries who might be providing domain names, server space, advertising or payment services to business customers who could, for example, be operating copyright infringing websites.

The open letter to the European Parliament and EU Council has been organised by a coalition of copyright industry trade groups called Know Your Business Customer.

It argues that, because internet intermediaries often don’t properly verify the identity of their customers, rogue operators can then utilise the services of those intermediaries anonymously. Which then makes it much harder for copyright owners or law enforcement agencies to pursue civil litigation or criminal charges against those rogue operators.

Outlining its key campaigning objectives, KYCB states: “Requiring commercial entities to reveal their true identity on the internet would automatically reduce illegal content online and would greatly facilitate consumers’ and business customers’ efforts to seek redress”.

That requirement actually already exists under European law via article five of the 2000 EU E-Commerce Directive, but obviously rogue operators ignore that obligation. So what the KYCB group wants is for otherwise legitimate internet intermediaries to withdraw services from such rogue operators who fail to reveal their true identity online.

The open letter – signed by music industry groups like IFPI, IMPALA, ICMP and BPI – says: “In a responsible and mature economy, businesses should not be able to operate and have access to the modern necessary infrastructure Europe has to offer without accurately identifying themselves”.

“This applies equally to the offline and to the online world, which is why in 2000 legislation introduced an obligation on businesses to identify themselves on their websites. Unfortunately – and unsurprisingly – businesses that have the intention of making a profit out of illegal content do not comply with this obligation and do not suffer consequences”.

Noting the proposed ‘know your business customer’ obligation already included in the draft Digital Services Act, the letter says that proposal is a “step forward”, but it “only introduces KYBC obligations in the context of online marketplaces”.

“Such a limited approach is a missed opportunity to address the broad range of illegal content and counterfeit, unsafe, non-compliant and substandard products online. The DSA represents a real opportunity to rectify a situation that allows bad actors to ignore article five of the ECD with impunity”.

“A business cannot go online without a domain name, without being hosted, or without advertisement or payment services”, the letter goes on. “These intermediary services, having a direct relationship with the business, are therefore best placed to make sure that only businesses that are willing to comply with the law have access to their services”.

“This does not mean monitoring their business customers’ behaviour, but merely asking them to identify themselves and applying simple due diligence checks on the basis of publicly available data”, it adds. “Should the information provided prove to be manifestly wrong, or the intermediary be notified that the business customer isn’t who it claims to be, the intermediary should stop providing services until the business customer remedies the situation”.

The campaign group notes that rogue operators exploiting their online anonymity has an impact beyond conventional piracy, although obviously making it easier to tackle online infringement is a key aim. But, it says, this anonymity has been exploited by the “operators of scam websites and operators of online services distributing illegal content, including but not limited to substandard or falsified medicines, sexual abuse material, counterfeits, malware, illegal gambling, piracy and more”

“These illegal activities can cause serious harm to EU citizens’ physical, psychological and financial wellbeing”, the letter concludes. “In some cases, especially during the COVID-19 pandemic, they can even pose a threat to life. All of these operators and all intermediary service providers enabling them to operate should be subject to KYBC provisions”.

“The Digital Services Act is an opportunity for the [European Parliament and EU Council] to address these shortcomings of the ECD. We therefore urge you to ensure that all intermediaries – not just online marketplaces – know who their business customers really are”.