A New Liability Regime for Illegal Content in the Digital Single Market Strategy
22 Pages Posted: 14 Jun 2019
Date Written: June 3, 2019
Within the European Digital Single Market strategy, online intermediaries, often categorized as the gatekeepers of information, have become major protagonists of a variety of policy and legislative actions. Indeed, over the last few years the European Commission has issued a great number of documents that touch upon illegal content online and platforms’ liability. Newly adopted rules, or those currently under adoption contribute to the formation of an emerging liability regime for unlawful content that profoundly differs from the regime of conditional liability exemption envisaged within the Ecommerce directive (hereafter “ECD”). Although the safe harbours adopted within the ECD remain in principle intact, the context in which they apply is now enriched by a new Directive on copyright in the Digital Single Market (hereafter “DSM directive”), a revised version of the Audio-visual Media Services Directive (hereafter “AVMSD”), the extension to commercial platforms of the obligations provided by the Unfair Commercial Practice Directive as well as the many communications and recommendations dealing with the issue of illegal content online.
All these initiatives generate the effect of introducing an enhanced liability regime for online intermediaries for third parties’ unlawful content, which should complement the current safe harbour regime but which results in a framework that lacks coherence and consistency. In fact, although the ECD exemptions continue to be a key element of the European system, there are further layers of obligations on online platforms, such as monitoring obligations, duties of diligence, reporting and flagging, requests to cooperate with rightholders, requirements to conclude licensing agreements, the obligation to adopt appropriate measures to prevent unlawful content and the calls for them to design platforms in a way that prevents consumers from being misled.
The conditional liability regime and its exemptions were introduced by the ECD as a means for the development of online services and for enabling the information society to flourish. This system horizontally shields Internet intermediaries—or in the ECD’s terminology ‘information society service providers’—performing mere conduit, caching and hosting from liability for unlawful conduct of third parties as long as they are in no way involved with the information transmitted, or, in the case of hosting services, do not have knowledge or awareness of the illegal activities and, if acquired, promptly act to stop them. In a different way, the liability regime that emerges as a result of the new hard and soft law provisions adopted within the DSM strategy on the one hand shields intermediaries on the basis of the actions that they take in relation to the nature of the content at stake, thus introducing a vertical exemption—which is no longer linked to knowledge or awareness of the infringing nature of the content but relies more on the organization that the intermediaries have adopted. On the other hand, it seems to go beyond a vertical liability, even, depending on the nature of the content at stake, to also anchor the platform’s liability for the organization that it should have adopted for that kind of content at stake. The liability appears in fact linked to the structure that the platforms should adopt in order to prevent illegal content from being uploaded, or re-uploaded.
In order to show this shift from a conditional liability regime to an organizational one—eg a regime where liability depends on the organization adopted by the undertaking in relation to the diverse types of content—in what follows I will unpack the category of illegal content (copyright infringing, harmful content and misleading content) and detail for each type the obligations that have been envisaged by the European institutions. This is necessary to establish the boundaries of the online intermediaries’ liability regime for illegal content that is emerging within the DSM strategy, analyse its main features, and address its coherence.
Keywords: Digital Single Market Strategy; Intermediaries' Liability; Algorithmic Enforcement
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