In May 2015, the European Commission published its Digital Single Market (DSM) Strategy: the Juncker Commission’s flagship policy initiative to eliminate national administrative silo’s and regulatory barriers in the digital economy. The Commission wants to help Europe’s businesses and consumers make the most of the opportunities offered by digital technologies.
Part of the strategy called for a broad consultation on the role of ‘platforms’, including a broad range of online intermediaries, in the economy and society. This document represents CDT’s submitted response to this consultation. The Commission wants to assess whether the current legal framework is adequate to deal with illegal content, and whether intermediaries should be required to exercise ‘greater responsibility and due diligence’ in this regard. Should some sort of a ‘duty of care’ be introduced?
The consultation hints at a regulatory change that would expand liability for intermediaries and thus increase legal risks and barriers to market entry for exactly those entrepreneurs and fledgling Internet start-ups that European policy makers are keen to promote. Large global companies would have the legal and economic resources to deal with such new risks and costs, but new innovators would not. This would hinder rather than help attain the European Commission’s otherwise laudable objectives.
CDT’s contribution to the consultation highlights the risk such regulation would pose for the Internet as an open and permissive space for public debate and free expression. Existing rules (the E-Commerce Directive) shield intermediaries from liability for content authored by third parties as long as the intermediary takes appropriate action when notified about illegal content. This enables these intermediaries to provide the technical foundation that supports individuals’ expression and access to information online.