Regulating the Internet Through Intermediaries in Europe and the USA

Zeitschrift für Rechtssoziologie, Vol. 23, No. 1, pp. 41-59, 2002

Posted: 5 Jan 2012 Last revised: 10 Jan 2012

See all articles by Benoit Frydman

Benoit Frydman

Perelman Centre for Legal Philosophy; Sciences Po School of Law

Isabelle Rorive

Université Libre de Bruxelles (ULB); University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: December 28, 2011

Abstract

This paper emphasizes the key role played by Internet Service Providers (ISPs) in the current developments in Internet content regulation. At present, no common international standards govern free speech limits on the Internet. Racist speech constitutes the most controversial issue between Europe and the US. The enforcement of domestic law online has recently led to surprising court rulings in several European countries, putting transatlantic ISPs under pressure. The paper provides a detailed account of three of these cases: the early German CompuServe case, the famous French Yahoo! case and most recently the French J’accuse! case. Both European and American legislators have endeavored to provide ISPs with “safe havens” (limitations of liability) and tentative procedural solutions like “notice and take down”. These new regimes and their likely effects on ISPs are presented and discussed. It is suggested that, despite the lack of common standards, the combination of the American and the European provisions would strongly incite transatlantic ISPs to take down racist material. This, however, also risks affecting other controversial data, otherwise subject to free speech protection. The danger of a massive scheme for private censorship is compelling.

Keywords: internet law, coregulation, ISP liability, censorship, hate speech, global law

Suggested Citation

Frydman, Benoit and Rorive, Isabelle, Regulating the Internet Through Intermediaries in Europe and the USA (December 28, 2011). Zeitschrift für Rechtssoziologie, Vol. 23, No. 1, pp. 41-59, 2002. Available at SSRN: https://ssrn.com/abstract=1977425

Benoit Frydman (Contact Author)

Perelman Centre for Legal Philosophy ( email )

CP 132 Av FD Roosevelt 50
Brussels, Brussels 1050
Belgium

Sciences Po School of Law ( email )

27 rue Saint-Guillaume
Paris Cedex 07, 75337
France

Isabelle Rorive

Université Libre de Bruxelles (ULB) ( email )

CP 132 Av FD Roosevelt 50
Brussels, Brussels 1050
Belgium

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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