Event Recap: Presentation of Dr. Monica Horten’s paper on uncertainty for internet intermediaries in EU

Written by Jens-Henrik Jeppesen, Jorge Castro

On 6 September in Brussels, CDT presented the paper Content ‘responsibility’: The looming cloud of uncertainty for internet intermediaries, authored by Dr. Monica Horten. Following the presentation of the paper, CDT hosted a lively debate with the participation of both the audience and the panel, composed of MEP Julia Reda from the European Parliament, Joe McNamee from EDRi and Alex de Joode representing EuroISPA.

Dr. Monica Horten’s paper addresses the topic of intermediary liability in the context of new EU policy proposals. These proposals introduce a new notion of ‘content responsibility’. The paper seeks to understand this notion and its consequences by analysing the policy proposals that have been tabled in 2016, as well as national and European case law. The paper concludes that the proposed measures should be balanced against the economic policy aims in the Digital Single Market strategy, and the duty of the European Commission and Member States’ governments to guarantee the right to freedom of expression under the European Convention on Human Rights. See here for a summary of the recommendations set out in the paper.

At the debate that followed the presentation of the paper and the remarks of the panellists, several attendees raised their concerns about whether the new proposals by the European Commission, such as on copyright, audio-visual media services or child protection, were in line with the current e-Commerce Directive, which establishes the intermediary liability protections that are critical to spur the growth of a wide range of online services that enable free expression, creativity, and debate. The panel noted that although the European Commission stressed several times that it would not re-open the e-Commerce Directive, the draft proposals seem to be in contradiction with current legislation as they imply monitoring obligations for intermediaries. This contradiction, in the event of a possible referral before the ECJ for the interpretation of EU law, would force judges to interpret these very freely, bringing with it serious legal uncertainty.

CDT has long advocated for strong intermediary liability protections, a message shared by the European Parliament. In the coming month, the European Commission will present crucial proposals for the completion of the Digital Single Market, including a new set of rules to modernise EU copyright. CDT will use the recommendations within the paper to strengthen our advocacy efforts on the various parts of the Digital Single Market Strategy.

The event took place on 6 September 2016, from 10:00 to 12:30 at the Thon Hotel EU in Brussels, and was moderated by CDT’s Director for European Affairs Jens-Henrik Jeppesen.

Share Post