Unlawful Content Online: Towards A New Regulatory Framework For Online Platforms

The thesis reviews the online intermediary liability framework of the E-Commerce Directive (in Articles 12 - 15) along two research questions. 1) Is the current legal framework regulating content liability of online platforms under the ECD still adequate when it comes to combating illegal content? 2) Are there alternative models for intermediary regulation that are better suited to include internet intermediaries in the fight against illegal content? These questions were formulated against the premises that unlawful content online has been a persisting and growing problem and that the position of online intermediaries today makes enhanced responsibilities on their part necessary. The thesis undertakes to analyse the nature of the enforcement challenges in the EU when trying to engage online platforms under the current liability framework, and charts out an alternative approach to holding online platforms responsible. Chapter 3 reviews the current intermediary framework in the EU and the horizontal challenges of holding internet intermediaries liable. This is analysed against the backdrop of the proliferation of the internet and online platforms, sketched out in the preceding Chapter 2. Due to the ambiguity and outdatedness of the ECD provisions, on the one hand, and different national secondary liability traditions, on the other hand, the liability protections of online platforms have been interpreted and applied differently by EU Member States, and most importantly courts, leading to an uneven and ineffective enforcement landscape. Chapter 4 analyses sectoral provisions that cover different kinds of offences related to unlawful content and their interactions with the ECD and national legislation on intermediary liability. The thesis evaluates enforcement efforts in the areas of defamation, hate speech, terrorist content, copyright, trademarks, product safety and food safety. While none of the national (sectoral) approaches reviewed appear to be effective when trying to enlist intermediaries in the fight against unlawful content, the latter have built up powerful own private enforcement systems that have come to rival and run counter to public interests and fundamental rights. Chapter 5 introduces case studies of online enforcement in the areas of product and food safety, based on interviews conducted with market surveillance authorities in the EU. The specific enforcement system of EU product regulation poses particular challenges, but also offers some useful lessons for the eventual framework proposed in Chapter 6. This system eschews today’s liability cornerstones and the reliance of self-regulatory tools favoured by EU and national legislators so far. Instead it proposes an enhanced responsibility system, based on harmonised technical standards as used in the EU's New Approach regulatory method. Technical standards would define duty of care obligations in the guise of risk management approaches, which focus on defined (sectoral) harms that arise from the business practices of online platforms. They incorporate prospective responsibilities, such as for example safety by design for user onboarding, user empowerment, or (algorithmic) content management, as well as specific retrospective responsibilities relating to e.g. notice and takedown or content identification system. The standard can be adapted to the type of harm/violation, thus taking account of the specific fundamental rights and public interests involved on a sectoral level.Enforcement in Multi-Level Regulatory Systems - DTU REMS