Seizing the Opportunity of the Digital Single Market
By: Raza Panjwani, Policy Counsel at Public Knowledge
As part of its Europe 2020 10-year agenda, the European Commission envisioned the creation of a digital single market, an extension of the European Union’s single economic market to the Internet. In order to realize that vision, the Commission has engaged in a series of public comment solicitations, and at the end of 2015, Public Knowledge responded to the European Commission’s request for public comments on the regulatory environment for platforms and online intermediaries.
As the development of the Internet economy in the United States has shown, striking the appropriate balance in establishing regulations for online platforms and intermediaries is a critical requirement for a flourishing digital market.
The Commission would do well to take a page from U.S. law and incorporate principles of limited liability for platforms and intermediaries into a digital single market policy. Under U.S. law, online platforms rely on two crucial and complementary laws — 47 U.S.C. §230 (sometimes referred to as §230 of the Communications Decency Act or “CDA”) and 17 U.S.C. §512, the “safe harbor” or “notice and takedown” provisions of the Digital Millennium Copyright Act. Together, those laws encourage innovation and growth by shielding online platforms from liability for the acts of individual users.
A critical part of the success of online platforms is in enabling and facilitating the speech and creative expression of users. Imposing liability and legal uncertainty on intermediaries and services for their users’ expression would chill the development and spread of innovative platforms for speech.
Just as importantly, a well functioning digital market needs to protect users. However, that doesn’t necessarily require regulating platforms and intermediaries as a special case. Applying general principles of consumer protection and informed consent to the practices of online businesses will yield appropriate results. One area where specific protections for users are critical though is in implementing intellectual property protection rules, such as §512. Protecting users on the Internet includes protecting their speech rights. In practice, this means incorporating a proper recognition of the limitations and exceptions to intellectual property laws in any dispute resolution mechanism like §512’s notice and takedown processes.
The Commission has the opportunity to adopt a balanced regulatory regime that encourages and enables the speech and expression of Europeans. If done right, a digital single market will spur innovation — if done wrong, by overburdening intermediaries or disregarding the speech interests of users, it will spurn it.
