The Digital Single Market Strategy — what next for intermediary liability?

The European Commission wants to help Europe’s businesses and consumers make the most of the opportunities offered by digital technologies. This is the stated goal of the May 2015 Digital Single Market (DSM) Strategy, and it is the right objective for the Commission to drive.

One initiative is a broad consultation on the role of ‘platforms’, including a broad range of online intermediaries, in the economy and society. The Center for Democracy and Technology (CDT) submitted our response to this consultation.

An important part of this exercise is an assessment of the current legal framework to deal with illegal content. In particular, the Commission has suggested that intermediaries could be required to exercise ‘greater responsibility and due diligence’ in this regard. It has hinted that a sort of a ‘duty of care’ might be introduced.

In CDT’s submission we argue that expanding liability for intermediaries increases 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.

Limiting intermediaries’ liability for user-generated content is a core principle that should be maintained. This is recognised widely, by intergovernmental organisations such as the OECD and UNESCO, by the current and former Special Rapporteurs on the Freedom of Opinion and Expression, and by the hundreds of human rights advocates (including CDT) and others who have supported the Manila Principles.

To be sure, many online services that have become household names over the past decade had not been imagined when these rules were adopted. Indeed, the fact that these new venues for communication and expression are now commonplace is an indication of the success of the existing legal framework. And there is an ongoing debate, and some litigation, about how the rules should be interpreted. There may well be scope for ensuring that implementation is made more consistent across EU Member States. That is a discussion CDT would be pleased to engage in. But the consultation poses questions about a number of ideas, including introducing a notice-and-stay-down/monitoring obligation, creating legal liabilities for new categories of intermediaries or types of illegal content that would only serve to create more barriers to a digital single market in Europe.

This is a challenging area of policy: As we have seen, there is growing pressure from governments on companies to assist them in suppressing content that the authorities deem undesirable (but not necessarily) illegal, such as radicalizing and hateful speech. Many companies cooperate with authorities to restrict this type of content, and they cooperate with holders of copyrighted content to deal with piracy. These types of voluntary cooperation are in some cases justified and understandable, and less problematic than government-imposed obligations. Voluntary cooperation, however, even when it is transparent and based on clear and objective criteria, can also carry risks to free expression when it is used to impose government censorship, while circumventing due process protections.

But changing legislation to impose new responsibilities for all manner of intermediaries would compound those risks dramatically while doing little to spur the growth of a digital single market in Europe.