General Monitoring Obligations: A New Cornerstone of Internet Regulation in the EU?

Abstract

Current policy discourse on intermediary liability in the European Union is steadily shifting from liability to responsibility. The former is understood as a negligence-based approach, while the latter emphasizes the need for proactive measures. The long-established principle prohibiting general monitoring obligations is currently being challenged by two initiatives in particular, namely the Copyright in the Digital Single Market Directive and the proposal on the Regulation preventing the dissemination of terrorist content online. Moreover, the recent opinion of Advocate General Szpunar provides an interesting perspective to the discussion on monitoring obligations for defamatory content. The CJEU judgement in Eva Glawischnig-Piesczek V Facebook Ireland Limited will certainly add another element to the expanding general monitoring puzzle. Another crucial piece will come from the European Commission with its newly elected president, who talks openly about her plan to update the E-Commerce Directive. The new approach to the role and responsibilities of online intermediaries will potentially redesign the rules of online content sharing in the EU.

Keywords: intermediary liability, E-commerce Directive, general monitoring, content moderation