Access to Digital Justice: In Search of an Effective Remedy for Removing Unlawful Online Content

Abstract

The publication and dissemination of unlawful online content and the lack of effective legal remedies has proven to be a persistent problem. This chapter aims to shed light on this by combining the perspectives of online speech regulation and access to justice, explaining why a (civil) procedural solution is so difficult to find. It is based on a study for the Dutch government into procedural routes and obstacles to quickly take down content that causes personal harm – i.e., a wide variety of Article 8 ECHR claims that impact people’s private life. The study consisted of a survey, expert interviews and a legal analysis. The issues identified in the Dutch procedural context are analysed in light of the broader EU legal framework and policy debates. The open and decentralised structure of the internet, as well as the powerful position of digital platforms, make it particularly difficult to regulate and control content moderation in general. This chapter shows that the main challenges for ‘access to digital justice’ are the need for speed and scalability. A trade-off emerges between accessibility on the one hand and the existence of institutional and procedural safeguards for the protection of fundamental rights on the other, especially the freedom of expression and due process. There is no single procedure that can properly balance all the divergent rights and interests concerned. Instead, a problem-oriented approach is proposed, where the removal of unlawful online content is seen as a collection of related specific issues that require a tailored solution. This chapter provides a steppingstone for more empirical research into people’s needs and perceptions in this respect.

Keywords: Unlawful Online Content, Right to Private Life, Access to Justice, Online Speech Regulation, Effective Remedies, Notice and Takedown, Procedural Safeguards, Platforms, Digital Services Act

JEL Classification: K13, K41, K42, O33