Taking Fundamental Rights Seriously in the Digital Services Act’s Platform Liability Regime

Abstract

This study highlights how the fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the planned reform of the E-commerce directive by the forthcoming Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this study addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Part I takes a closer look at the history and theory of intermediary liability online before analysing the limited liability regime foreseen in the E-Commerce Directive and the upcoming future Digital Services Act. The study then reviews in part II pertinent fundamental rights and jurisprudence developed by the ECtHR and the CJEU under the European Convention on Human Rights and the EU Charter. Part III then focusses on the imperatives that fundamental rights bring to the discussion of a reform of the limited intermediary liability regime in the EU. To this end, this study concludes by specifying several major directions that should be explored to achieve a balanced regulatory approach and a fundamental rights-compliant framework for platform liability in the EU.