Updating the Rules for Online Content Dissemination - Legislative Options of the European Union and the Digital Services Act Proposal (Open Access)

Book published by Nomos - 1st (2021)

The current legal framework for online content dissemination has proven insufficient to effectively combat illegal content. The Commissions' proposal for an EU ‘Digital Services Act’ aims to update the ... [more ▼]

The current legal framework for online content dissemination has proven insufficient to effectively combat illegal content. The Commissions' proposal for an EU ‘Digital Services Act’ aims to update the horizontal framework for intermediaries and create a safe online environment. However, as far as content mediation is concerned, European fundamental rights and values require that the specificities of media law must be taken into account. This study, conducted by the Institute of European Media Law (EMR) on behalf of the Media Authority of NRW, describes the current legal framework and the DSA proposal, and provides a comprehensive assessment from the perspective of media law, complemented by alternative proposals for further improvement. [less ▲]

Self-Regulation of Fundamental Rights? The EU Code of Conduct on Hate Speech, Related Initiatives and Beyond

in Ojanen, Tuomas; Petkova, Bilyana (Eds.) Fundamental Rights Protection Online: the Future Regulation of Intermediaries (2020)

This contribution will give a brief overview of EU legislation encouraging self-regulation, such as codes of conduct, communications and recommendations and propose an alternative approach towards ... [more ▼]

This contribution will give a brief overview of EU legislation encouraging self-regulation, such as codes of conduct, communications and recommendations and propose an alternative approach towards fighting illegal content on online platforms, which ventures squarely into co-regulation. There is no formal and straightforward definition on what constitutes illegal hate speech. However, hate speech might be classified as targeting minority groups in a way that promotes violence or social disorder and hatred. The use of social media and online platforms to spread illegal content and hate speech has increased progressively during recent years, as content may be disseminated anonymously and further shared by other users. Therefore, the timely removal or blocking of access to illegal content is essential to limit the wider dissemination and harm of individuals targeted by hate speech. The prominent role of online platforms in revolutionizing modern communication and as influencers of the public opinion has increasingly come to the attention of policy makers. Since online platforms provide an important stage for phenomena such as ‘fake news’, ‘hate speech’ or ‘disinformation’, the pressure to take more responsibility over content hosted by them has grown. The EU Commission took action via several attempts to set certain rules for online intermediaries, mostly relying on non-binding agreements, often in the form of self-regulatory measures, such as codes of conduct, guidelines and recommendations. These measures have raised concerns regarding possible limitations of Freedom of Expression, because they require online platforms to adjudicate on the legality of content, often by relying on automated systems. Meanwhile decisions over the unlawfulness of hate speech and “disinformation” are often notoriously difficult. The deployment of algorithms to analyse the content generated on platforms, such as recognition and filtering technologies, bear risks and pitfalls of automated compliance solutions. Although the use of algorithms to monitor content online still happens based on the “human-in-the-loop principle”, the diligence and efficiency with which illegal content can be reviewed is also dependent on the financial capacity and resources of each company. In addition, these privatized removal procedures maybe influenced by commercial interests and lack effective appeals mechanisms. All these issues throw up serious questions about the democratic legitimacy of self-regulatory removal procedures An alternative solution, proposed in this article, would require platforms to apply a risk-based approach to preventing and removing illegal content. The norms and standards of such an approach would be based on duty of care and be subject to regulatory oversight. It is suggested that the current self-regulatory proposals be replaced by co-regulatory solutions. [less ▲]

New Approach meets new economy: Enforcing EU product safety in e-commerce

in Maastricht Journal of European and Comparative Law (2019)

This article reviews recent regulatory initiatives in the area of EU product safety legislation and market surveillance from the angle of e-commerce through online marketplaces. With the arrival of the ... [more ▼]

This article reviews recent regulatory initiatives in the area of EU product safety legislation and market surveillance from the angle of e-commerce through online marketplaces. With the arrival of the internet, the sale of non-compliant and illegal consumer products has proliferated. E-commerce and globalized supply chains are challenging a regulatory system that is fragmented, highly technical and slow to respond to the dynamic changes introduced to the marketplace. The EU Commission’s 2017 notice on the surveillance of products sold online and its latest proposal for a new regulation on enforcing product compliance rules testify to the unsatisfactory state of progress in this area. A reason for this may be seen in the history and nature of New Approach style product law, which outsources technical product regulation to the industry and entrusts enforcement tightly in the hands of specialized national regulators. New actors in the supply chain, such as fulfilment service providers or e-commerce platforms, have fallen between the cracks. This article argues that extending the principles of the New Approach to e-commerce marketplaces, by seeing their activities as affecting essential requirements, could be of interest to both the problems at hand and the wider debate on online platforms regulation. [less ▲]

A risk-based approach towards infringement prevention on the internet: adopting the anti-money laundering framework to online platforms

in International Journal of Law and Information Technology (2018)

This article suggests a new approach towards online service provider liability which relies on duty of care. It proposes a concrete compliance framework for online platforms, borrowed from risk regulation ... [more ▼]

This article suggests a new approach towards online service provider liability which relies on duty of care. It proposes a concrete compliance framework for online platforms, borrowed from risk regulation, and modelled on anti-money laundering (AML) obligations in the financial sector. First, the prohibition on obliging platforms to monitor content in a general manner under the E-Commerce Directive will be discussed. On the face of it this may clash with a standardized requirement to filter for infringing content. Subsequently, the regulatory choice for such a duty of care standard will be explored. It is argued that the largely self-regulatory proposals currently on the table may be ill fitted to achieve traction and accountability. Finally, a three-tier compliance framework, modelled on the AML system and using a risk-based approach, is proposed. The pitfalls of such a highly automated compliance solution, which enforces complex legal norms, will also be touched on. [less ▲]

A risk-based approach towards infringement prevention on the internet

Presentation (2018, April 25)

Déjà vu Davidoff - The German Federal Court of Justice (FCJ) has asked the Court of Justice of the European Union (CJEU) for guidance on the role and responsibilities of fulfilment service providers in trademark protection

in Journal of Intellectual Property Law and Practice (2018)

The German Federal Court of Justice (FCJ) has asked the Court of Justice of the European Union (CJEU) for guidance on the role and responsibilities of fulfilment service providers in trademark protection.

Standards for duty of care? Debating intermediary liability from a sectoral perspective

in Journal of Intellectual Property, Information Technology and Electronic Commerce Law (2017), 8(2),

The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the Ecommerce Directive (ECD). Already in those days, during the run-up to the ECD, there ... [more ▼]

The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the Ecommerce Directive (ECD). Already in those days, during the run-up to the ECD, there was an intense debate regarding whether a light-touch approach or more stringent content liability regime for intermediaries would be the appropriate way forward. 20 years later the debate is essentially led from the same angle, but has predictably, increased in complexity as the internet makes massive strides in transforming the “offline” world. There are those who argue that a purely horizontal approach in regulating internet intermediaries, or online platforms, remains sufficient. Others think the time has come to reflect the disruptive entrances online platforms made in various sectors of society in more vertical changes affecting substantive law. The EU Commission sits on the fence it seems, however. In its communication on online platforms and the digital single market, the Commission announced last year that it would leave the current intermediary liability regime as it is for now “while implementing a sectoral, problem-driven approach to regulation". This paper will map out and critically evaluate some current sectoral (read vertical) regulatory developments, which may affect intermediary liability. It will look at recent, more top-down approaches proposed by the EU (e.g. in copyright), as well as self-regulatory efforts. This will be compared to less publicized developments, which have notably taken place in the area of product and financial regulation affecting ecommerce, such as for example efforts to combat the sale of fake medicines, unsafe products online, or anti-money laundering compliance. In these areas, it is argued that regulatory authorities have more proactively engaged online platforms, both on a legislative and practical level. A special focus in this context will be on the role of reasonable duties of care which intermediaries may be required to apply in order to detect and prevent infringements. Could these more “grassroots” developments and the convergence of online and offline worlds provide blueprints to encourage the development of a new content liability framework based on sectoral duties of care? [less ▲]

Debating intermediary liability from a sectoral perspective

Presentation (2017, April 20)