Content ‘responsibility:’ The looming cloud of uncertainty for internet intermediaries

This paper addresses the topic of intermediary liability in the context of new European Union 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 State governments to guarantee the right to freedom of expression under the European Convention on Human Rights.

The paper makes the following recommendations for future EU policy in this area:

• EU policy makers should safeguard the internet as an open, innovative, and vibrant platform for the exercise of users’ free expression and other fundamental rights. Any policy measures adopted to restrict content online should be compatible with the E-commerce Directive and guarantee safeguards as established under Article 10 of the European Convention on Human Rights. This includes any self- or co-regulatory measures implemented to fulfill a State policy aim.
• Policy makers should strengthen liability protection for intermediaries, and positively confirm that any form of general monitoring is not lawful.
• No attempts should be made to create new categories of intermediaries, such as active hosting. This would result in a narrowing of the activities of intermediaries that are covered by existing liability protections. It would lead to increased legal uncertainty and cost for internet-based start-up companies. It would limit the scope for users to upload and engage with online content, with negative consequences for free expression.
• Policy makers should refrain from creating new categories of rights in online content, such as ancillary rights for publishers. Such measures would have a negative impact on free expression, and on internet-based innovation and entrepreneurship.
• Any restrictive measures must be carefully targeted towards content that is clearly illegal; there must be full judicial oversight and transparency as to the type and volume of content that is targeted, as well as the duration and territorial scope and the type of restriction implemented. There must be compliance with the principles of necessity, proportionality, and foreseability, and such measures should go no further than is essential to address the social need pursued. Due process must be in place that allows appeal of wrongful take downs or blocking decisions.
• While the protections in the E-Commerce Directive should be maintained and reinforced, the Commission might consider whether notice-and-action procedures could be improved and more consistently implemented across Member States.

Dr. Monica Horten is a Visiting Fellow, London School of Economics and Political Science. She currently serves as a Council of Europe expert on the Programmatic Co-operation Framework for Ukraine, Moldova, and Georgia, and she previously sat on the Committee of Experts on Cross-border Flow of Internet Traffic and Internet Freedom.