Download this Paper Open PDF in Browser

Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy

Posted: 6 Feb 2017  

Giancarlo Frosio

Université de Strasbourg - CEIPI; Stanford Law School, CIS

Date Written: February 6, 2017

Abstract

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. Apparently, safe harbours still hold, although secondary liability is on the rise. As part of its Digital Single Market Strategy, the European Commission would like to introduce sectorial legislation that would de facto erode liability exemptions for online intermediaries, especially platforms. Under the assumption of closing a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighbouring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This paper would like to contextualize the recent EU reform proposal within a broader move towards turning online intermediaries into Internet police. This narrative builds exclusively upon governmental or content industry assumptions, rather than empirical evidence. Also, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Apparently, the European Commission aligns its strategy for online platforms to a globalized, ongoing move towards privatization of enforcement online through algorithmic tools. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet.

Keywords: intermediary liability, online platforms, copyright, free speech, hate speech, safe harbors, liability exemptions, European law

Suggested Citation

Frosio, Giancarlo, Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy (February 6, 2017). 112 Northwestern University Law Review 19 (2017). Available at SSRN: https://ssrn.com/abstract=2912272

Giancarlo Frosio (Contact Author)

Université de Strasbourg - CEIPI ( email )

11 Rue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: http://www.ceipi.edu/en/ceipi/the-ceipi-team/giancarlo-frosio/

Stanford Law School, CIS ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://https://cyberlaw.stanford.edu/about/people/giancarlo-frosio

Paper statistics

Downloads
2,275
Abstract Views
6,763