Over-Blocking: When is the EU Legislator Responsible?
22 Pages Posted: 18 Feb 2021
Date Written: February 11, 2021
People’s online speech is vulnerable to invisible decision-making by online providers of services. States are increasingly demanding that the providers assume a more active role in reducing illegal content on their services. By doing so, they inevitably expose freedom of expression to a risk. While targeting illegal content, non-state actors inevitably block innocent websites, accounts, or content. They over-block. What should then the states do to prevent or minimize these undesirable outcomes? States control the decision-making of non-state actors only indirectly, most notably through safeguards. However, what safeguards are appropriate? And who should install them in the European Union context? I try to provide answers.
The article proceeds as follows. First, the paper briefly outlines different types of delegated enforcement and why they pose different risks to freedom of expression. Second, the paper shows that when the law expects firms to remove illegal content, the legislature must assume responsibility to minimize the risks of over-blocking. Third, it maps the standard of review and safeguards that were previously identified in the case-law of CJEU and ECtHR. It is argued that these procedural safeguards should constitute a universal precondition for any delegation of enforcement and that the more intensive the interference, the stronger safeguards are necessary. Fourth, the paper shows that the European Union legislator, despite the competence limits, bears some central responsibility for designing the safeguards and cannot simply leave their design to the Member States. Fifth, the paper showcases the application of these minimum criteria to Article 17 of the Directive on Copyright in the Digital Single Market, which is currently being reviewed by CJEU in Poland v Parliament/Council. The paper concludes that the court should invalidate the provision because it lacks any effective ex-ante safeguards and the ex-post safeguards are insufficiently specific. This serious birth defect propels Article 17 towards invalidation irrespective of whether the Member States can subsequently fix the failures of the Union legislator in the implementation stage.
Keywords: over-blocking, freedom of expression, delegated enforcement, Digital Rigths Ireland, Article 17 DSMD
JEL Classification: K20
Suggested Citation: Suggested Citation