Over-Blocking: When is the EU Legislator Responsible?

Abstract

Countries around the world are legitimately demanding that the providers of digital spaces fix the problem of illegal content on their services. The European Union legislature is increasingly entrusting various enforcement tasks to technology firms. However, this delegation of responsibilities creates risks to freedom of expression. In their efforts to remove unlawful or infringing content, firms inevitably block innocent websites, accounts, or content. They over-block legitimate speech. These speech risks cannot be eliminated but must be controlled and minimized. The paper looks at who and how must do this. It advances three related theses. Firstly, when law expects firms to act by removing content, the legislatures cannot leave it to firms to self-police such adverse effects; delegating states cannot avoid their responsibility. Secondly, the European Union legislature bears enhanced responsibility to contain such risks. It cannot leave the design of the corresponding safeguards entirely to the Member States. Thirdly, since safeguards to over-blocking usually require positive action of legislatures to be effective, judges have limited powers to introduce them by re-interpretation. ECJ should be therefore stricter when reviewing the validity of such Union law, especially when the horizontal direct effect is absent. Two recent contentious EU legal instruments in the area of copyright and terrorist content enforcement offer an excellent case study of these problems. The copyright instrument will be soon scrutinized by ECJ in Poland v Parliament/Council C-401/19. If the article’s arguments are endorsed, the ruling might open a new chapter for the quality of EU lawmaking.