An Endless Odyssey? Content Moderation Without General Content Monitoring Obligations

Abstract

In line with the E-Commerce Directive and the Directive on Copyright in the Digital Single Market, the proposed Digital Services Act provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature.

Against this background, the analysis sheds light on the general monitoring ban in the EU acquis and maps different approaches to its interpretation and implementation in practice. Based on a detailed analysis of Court of Justice jurisprudence and fundamental rights implications, the analysis leads to the insight that a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers. This insight is of particular importance because it prevents encroachments upon fundamental rights and paves the way for a proper understanding of the scope of content moderation duties.

Keywords: general monitoring, content moderation, filtering, censorship, intermediary liability, hosting service, safe harbour, injunctive relief, notice and take down, notice and stay down, defamation, trade mark, copyright, algorithmic enforcement, user-generated content, freedom of expression