‘Trusted Flagger’ Anti-Piracy Tools Raise Concern at US Chamber of Commerce

In response to rising levels of online infringement, major rightsholders have promoted the use of so-called 'trusted flaggers'. These entities would have permission to interface with online services and directly flag content to be rendered unavailable, minus the usual friction. In its 2023 IP Index report, the US Chamber of Commerce suggests that the introduction of 'trusted flaggers' in the EU may actually represent a new barrier to effective enforcement.

The US Chamber of Commerce 2023 International IP Index report is a pretty big read at 213 pages, but for those interested in intellectual property matters, it’s an interesting one too.

The report benchmarks the IP frameworks in 55 major economies and rates them based on how effectively they protect all kinds of intellectual property. Countries and regions with a reputation for cracking down on infringement tend to gravitate towards the top of the index but that doesn’t prevent the Chamber of Commerce from offering criticism.

European Union Criticized For Complexity

For the last two years, the European Commission has expended significant resources on two new pieces of legislation known as the Digital Markets Act (DMA) and the Digital Services Act (DSA). Their overall goal is to improve online safety and protect citizens’ fundamental rights, while ensuring that digital markets are both fair and open.

Time will tell how that all works out but for now, over-complication appears to have led to a level of frustration in the United States. The Chamber introduces the DSA as a “sprawling piece of legislation granting vast regulatory and monitoring powers” before noting the plethora of categorizations that hope to encompass all kinds of online platforms.

“The law is full of definitions and categorizations of different providers of online ‘intermediary services,’ including ‘caching, mere conduit, hosting, online platforms, very large online platforms, and very large online search engines. Some of these categories are transplanted from preexisting definitions under the E-Commerce Directive, whereas others are new,” the report notes.

“[T]hese categories are fluid, and entities may, at different moments, be one or another or a combination of these categories with differing levels of accompanying compliance and reporting responsibilities. Consequently, an entity’s legal obligation and responsibilities may change rather significantly depending on what category of service provider the entity was at a given moment.”

Trusted Flaggers Fail to Impress

Major rightsholders and some governments have been promoting the use of so-called ‘trusted flaggers’ to help tackle infringement. These entities could be companies, organizations or even an individual, but the key element is that they are trusted to make good decisions on the takedown, removal or blocking of content, directly on the platforms where content is found.

The concepts around this tend to vary, but a basic example might include a third-party acting on behalf of a rightsholder having direct access to a video platform’s panel and being allowed to flag content for deletion themselves. Trusted flaggers have been mentioned as potentially useful in rapid site-blocking actions and live stream takedowns, through to the removal of listings on social media advertising sundry infringing goods.

As the Chamber of Commerce points out, such takedown notices must be “processed and decided upon with priority and without undue delay,” but not all rightsholders have the resources to employ a trusted flagger to do their work. So what about their rights?

“[G]iven the sheer scale and volume of illegal and IP-infringing content on the internet, what will happen with notifications filed by non-trusted flaggers? Will such notices be addressed in an expeditious fashion or deprioritized by intermediaries in favor of notices filed solely by trusted flaggers?” the report asks.

“As currently drafted, that is a logical and not unlikely outcome. Furthermore, although the creation of the trusted flagger concept may help standardize and professionalize the notification process, it may also prove to be largely ineffective and, in fact, act as a barrier to effective enforcement.

“The creation of what is, in effect, an online enforcement gatekeeper adds a hurdle and layer of bureaucracy to an already elaborate enforcement process,” the report concludes.