Trusted Notifiers and the Privatization of Online Enforcement

Computer Law & Security Review, Volume 35, Issue 6 (2019), Doi.org/10.1016/j.clsr.2019.105339

22 Pages Posted: 5 Dec 2018 Last revised: 18 Dec 2020

See all articles by Sebastian Felix Schwemer

Sebastian Felix Schwemer

University of Copenhagen, Centre for Information and Innovation Law (CIIR); University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

Date Written: November 20, 2018

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

Suggested Citation

Schwemer, Sebastian Felix, Trusted Notifiers and the Privatization of Online Enforcement (November 20, 2018). Computer Law & Security Review, Volume 35, Issue 6 (2019), Doi.org/10.1016/j.clsr.2019.105339 , Available at SSRN: https://ssrn.com/abstract=3287754 or http://dx.doi.org/10.2139/ssrn.3287754

Sebastian Felix Schwemer (Contact Author)

University of Copenhagen, Centre for Information and Innovation Law (CIIR) ( email )

Karen Blixens Plads 16
Copenhagen, 2300
Denmark

HOME PAGE: http://www.ciir.dk

University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

St. Olavsplass 5
Oslo, Oslo 0130
Norway

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