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The draft directive aims—inter alia—to close the so called “value gap” between Internet platforms and copyright holders. To that end, the proposed reform includes a provision that would impact platform operations. It requires intermediaries “that store and provide access to large amounts of works . . . uploaded by their users” to take appropriate and proportionate “measures to ensure the functioning of agreements concluded with rightholders for the use of their works” or “to prevent the availability on their services of such works,” including through “the use of effective content identification technologies.”

The Communication apparently endorses the plan of maintaining the existing intermediary liability regime. However, the Commission stresses that “a number of specific issues relating to illegal and harmful content and activities online have been identified that need to be addressed.” In this regard, the Commission would launch a “sectorial legislation … and problem-driven approach.” Apparently, this sectorial action will target copyright-protected content, minors’ protection from harmful content, and incitement through hatred. This should happen through a mix of legislative interventions—by updating the audiovisual and copyright regulations—and promotion of voluntary self-regulatory actions. The Communication puts forward the idea that “the responsibility of online platforms is a key and cross-cutting issue.”

The Commission anticipated that policy and legislative action would be taken in respect of: (1) exceptions and limitations; (2) exclusive rights, including both clarifying issues facing linking and considering whether any action specific to news aggregators is needed; and (3) enforcement, including Follow the Money strategies, commercial-scale infringements, application of provisional and precautionary measures, and injunctions and their cross-border effect. In connection with this Communication and the Digital Single Market Strategy (below), the Commission launched a Public Consultation on the Regulatory Environment for Platforms, Online Intermediaries, Data and Cloud Computing and the Collaborative Economy and will issue a report shortly.

The Strategy plans the introduction of enhanced obligations that websites and other Internet intermediaries should have for dealing with unlawful third-party content and discusses what regulations should apply to a subset of those intermediaries deemed “internet platforms.” The Commission would like to discuss whether "whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems – a duty of care." (emphasis added). The Commission refers to enhanced responsibilities for dealing with illegal content, such as child pornography, terrorist materials, and content that infringes upon intellectual property rights. (See § 3.3)