Notice-and-Fair-Balance: How to Reach a Compromise between Fundamental Rights in European Intermediary Liability
This is an Authors' Original Version of an article published by Taylor & Francis in Journal of Media Law (2016) on 21 Oct 2016, DOI: 10.1080/17577632.2016.1240957
26 Pages Posted: 4 Apr 2017 Last revised: 14 Jul 2017
Date Written: October 21, 2016
In recent years, Europe’s highest courts have searched for the answer to the problem of intermediary liability in the notion of a ‘fair balance’ between competing fundamental rights. At the same time, the ‘notice-and-takedown’ system, which first emerged as a solution to intermediary liability in the 90s, has spread across the globe, transforming along the way into an assortment of ‘notice-and-action’ variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting ‘fair balance’ as a call for compromise, we propose a move away from the traditional ‘horizontal’ approach of the EU’s safe harbour regime, towards a more ‘vertical’ scheme, whereby distinct ‘actions’ are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-stay-down are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer ‘fair balance’ in this difficult area of law.
Keywords: intermediary liability, fair balance, CJEU, ECtHR, fundamental rights, notice-and-action
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