Taking Fundamental Rights Seriously in the Digital Services Act’s Platform Liability Regime

European Law Journal 2022 (forthcoming)

50 Pages Posted: 22 Mar 2021 Last revised: 6 Sep 2022

See all articles by Giancarlo Frosio

Giancarlo Frosio

Queen's University Belfast - School of Law; Stanford University - Stanford Law School Center for Internet and Society; Université de Strasbourg - CEIPI

Christophe Geiger

Luiss Guido Carli University

Abstract

This article highlights how the fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the forthcoming Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Part I takes a closer look at the history and theory of intermediary liability online before analysing the limited liability regime foreseen in the E-Commerce Directive and the upcoming future Digital Services Act. The article then reviews in part II pertinent fundamental rights and jurisprudence developed by the ECtHR and the CJEU under the European Convention on Human Rights and the EU Charter. Part III then focusses on the imperatives that fundamental rights bring to the discussion of a reform of the limited intermediary liability regime in the EU. To this end, this article concludes by specifying several major directions that should be explored to achieve a balanced regulatory approach and a fundamental rights-compliant framework for platform liability in the EU.

Keywords: intermediary liability, fundamental rights, Digital Services Act, platforms, online, intellectual property, copyright, content moderation, reform, EU law, CJEU. ECHR

Suggested Citation

Frosio, Giancarlo and Geiger, Christophe, Taking Fundamental Rights Seriously in the Digital Services Act’s Platform Liability Regime. European Law Journal 2022 (forthcoming), Available at SSRN: https://ssrn.com/abstract=3747756 or http://dx.doi.org/10.2139/ssrn.3747756

Giancarlo Frosio (Contact Author)

Queen's University Belfast - School of Law ( email )

Main Site Tower, Queen's University Belfast
Belfast, BT7 1NN
United Kingdom

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://https://cyberlaw.stanford.edu/about/people/giancarlo-frosio

Université de Strasbourg - CEIPI ( email )

11 Rue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: http://www.ceipi.edu/en/ceipi/the-ceipi-team/giancarlo-frosio/

Christophe Geiger

Luiss Guido Carli University ( email )

Department of Law, Via Parenzo, 11
Rome, Roma 00198
Italy

HOME PAGE: http://giurisprudenza.luiss.it/docenti/cv/353993

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