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From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe

12 Oxford Journal of Intellectual Property and Practice 565 (2017)

18 Pages Posted: 24 Apr 2017 Last revised: 4 Nov 2017

Giancarlo Frosio

Université de Strasbourg - CEIPI; Stanford Law School, CIS

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Date Written: March 1, 2017


As part of its Digital Single Market Strategy, the European Commission would like to introduce vertical regulations, replacing—or better conflicting with — the well-established eCommerce Directive horizontal intermediary liability regime.

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. Meanwhile — under the assumption of closing a ‘value gap’ between rightholders and online platforms allegedly exploiting protected content—the Draft Directive on Copyright in the Digital Single Market would implement filtering obligations for intermediaries. Finally, the EU Digital Single Market Strategy has also endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online.

Each of these actions will erode the eCommerce intermediary liability arrangement by bringing in — in a way or another — proactive monitoring obligations and causing a systemic shift from a negligence-based to a strict liability regime for hosting providers. This systemic shift would apparently occur against public consensus and absent any justification based on empirical evidence. Nonetheless, it will bring about dire consequences by pushing privatization of enforcement online through algorithmic intelligence, based on murky, privately-enforced standards, rather than transparent legal obligations. This reform might cause a policy earthquake that will shake and crack EU law’s systemic consistency, due process and fundamental rights online.

Keywords: Copyright, Internet, Intermediary Liability, European Law, Reform, Piracy, Infringement, Online Platform, Platform Economy

Suggested Citation

Frosio, Giancarlo, From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe (March 1, 2017). 12 Oxford Journal of Intellectual Property and Practice 565 (2017). Available at SSRN:

Giancarlo Frosio (Contact Author)

Université de Strasbourg - CEIPI ( email )

11 Rue de Marechal Juin


Stanford Law School, CIS ( email )

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

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