Trusted Notifiers and the Privatization of Online Enforcement

Abstract

Online content is increasingly enforced by private parties based on private regulation. One recent trend in the takedown of unlawful online content is the emergence of models, where trusted third parties – private or public – are given privileged notification channels for flagging infringing content. This article first explores the functioning of trusted notifier- ("trusted flaggers"-) models and how they are addressed by the European lawmaker in the context of online platforms. In the second part, the article turns towards models for domain name-related takedowns. The author argues that these trusted notifier- ("trusted flaggers"-) models are problematic given the broad room of autonomy that the legislator is leaving to private parties. The paper shows that trusted notifier-models can be seen both as a simple extension of the existing notice-and-takedown regimes and as an additional voluntary enforcement layer. Whereas models involving public authorities are subject to general administrative law principles as well as constitutional and human rights safeguards, the framework for private regulation (i.e. without intervention of public actors) is less clear. In the field of domain names, these legitimacy issues give raise to even special concern given the detached relation between domain names and website content. The paper criticizes the lack of insights into existing arrangements and calls for increased transparency. The author concludes that a legislative minimum framework is desirable.

Keywords: trusted flagger, trusted flaggers, trusted notifiers, private ordering, domain name system, online enforcement, privatization of enforcement, recommendation (EU) 2018/334, Digital Services Act

JEL Classification: K24