Leaving the European Safe Harbor, Sailing Towards Algorithmic Content Regulation

Abstract

This article tracks the different proposals of automated content-takedown measures in the European Union. Then it briefly identifies some common issues in the context of the European safe harbor regime and the existing notice-and-takedown system. It argues that the policy trend towards algorithmic content regulation is problematic: firstly, there is only little known about the workings of algorithmic content enforcement at this point. Secondly, the legislator appears to prefer soft law and industry self-regulation over legislative intervention based on secondary law. Thirdly, the reliance on algorithmic content regulation represents a departure from the traditional intermediary liability regime.

The article covers Article 13 of the Directive on copyright in the Digital Single Market [now Article 17 of Directive 2019/790 (EU), Articles 14 and 15 of the E-Commerce Directive, Commission Recommendation (EU) 2018/334 on measures to effectively tackle illegal content online, revised Audiovisual Media Services Directive, Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online.

Keywords: content regulation, safe harbour, algorithmic enforcement

JEL Classification: K24, K42