Safeguards for Freedom of Expression in the Era of Online Gatekeeping

Abstract

States increasingly delegate regulatory and police functions to Internet intermediaries. The delegation is achieved by providing an incentive, in form of conditional liability exemptions. In the EU, the exemptions enshrined in the E-Commerce Directive effectively require intermediaries to police online content, if they wish to maintain their immunity regarding third party content. Such an approach, however, results in delegated private enforcement that may lead to interference with the right to freedom of expression by private parties. Involving intermediaries in content regulation may be inevitable. The legal framework on which it is based, however, should come equipped with safeguards that ensure effective protection of the right to freedom of expression. This paper identifies safeguards that EU policy makers should consider in order to better protect freedom of expression in the context of notice and action.

Keywords: Intermediary liability, freedom of expression, E-Commerce Directive, notice and action, safeguards