From horizontal to vertical: an intermediary liability earthquake in Europe

Abstract

As part of its Digital Single Market Strategy, the European Commission would like to introduce vertical regulations, replacing — or better conflicting with — the well-established eCommerce Directive horizontal intermediary liability regime. An upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Meanwhile — under the assumption of closing a ‘value gap’ between rightholders and online platforms allegedly exploiting protected content — the Draft Directive on Copyright in the Digital Single Market would implement filtering obligations for intermediaries. Finally, the EU Digital Single Market Strategy has also endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. Each of these actions will erode the eCommerce intermediary liability arrangement by bringing in — in a way or another — proactive monitoring obligations and causing a systemic shift from a negligence-based to a strict liability regime for hosting providers. This systemic shift would apparently occur against public consensus and absent any justification based on empirical evidence. Nonetheless, it will bring about dire consequences by pushing privatization of enforcement online through algorithmic intelligence, based on murky, privately-enforced standards, rather than transparent legal obligations. This reform might cause a policy earthquake that will shake and crack EU law’s systemic consistency, due process and fundamental rights online.