The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters
8(3) Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC) 212 (2017）
17 Pages Posted: 5 Jun 2017 Last revised: 16 Jun 2018
Date Written: June 5, 2017
In imposing a strict liability regime for alleged copyright infringement occurring on YouTube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that “if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.” In order to tame the monster, the Brazilian Superior Court had to impose monitoring obligations on YouTube. This was not an isolated case. Proactive monitoring and filtering found their way in the legal system as a privileged enforcement strategy through legislation, judicial decisions and private ordering. In multiple jurisdictions, recent case law has imposed proactive monitor obligations on intermediaries. These cases uphold proactive monitoring across the entire spectrum of intermediary liability subject matters: intellectual property, privacy, defamation, and hate/dangerous speech. In this context, however, notable exceptions — such as the landmark Belen case in Argentina — highlight also a fragmented international response. Legislative proposals have been following suit. As part of its Digital Single Market Strategy, the European Commission, would like to introduce filtering obligations for intermediaries to close a “value gap” between rightholders and online platforms allegedly exploiting protected content. In addition, proactive monitoring and filtering obligations would also feature in an update of the European audio-visual media legislation. Meanwhile, online platforms have already set up miscellaneous filtering schemes on a voluntary basis.
In this paper, I suggest that we are witnessing the death of “no monitoring obligations,” a well-marked trend in intermediary liability policy. Current Internet policy — especially in Europe — is silently drifting away from a fundamental safeguard for freedom of expression online. In this respect, this paper would like to contextualize this trend within the emergence of a broader move towards private enforcement online. The EU Digital Single Market Strategy apparently endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. As I argued elsewhere, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention. In addition, filtering and monitoring will be dealt almost exclusively by intermediaries through automatic infringement assessment systems. Due process and fundamental guarantees get mauled by algorithmic enforcement, limiting enjoyment of exceptions and limitations, use of public domain works, and silencing speech according to the mainstream ethical discourse. The upcoming reform — and the border move that it portends — might finally slay “no monitoring obligations” and fundamental rights online, together with the untameable monster.
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