Monitoring Obligations Research Articles

To be, or not to be? Copyright general monitoring dilemma of online hosting audio‐visual platforms in China

AbstractIn China, a hosting audio‐visual platform does not bear a copyright general monitoring obligation. It bears a public law obligation to monitor content proactively and constantly to safeguard the governance objective of cybersecurity. Little literature has discovered that Chinese case law has shown a risk that this public law obligation can impose an actual copyright general monitoring obligation upon platforms. The crux lies in that the public law obligation weakens the rationale of the copyright no monitoring obligation that a platform cannot access and assess each piece of work proactively. Copyright general monitoring seems to be workable as a platform is given such an opportunity to access and evaluate each content upon the fulfillment of the public law obligation. It, however, is unjustifiable to create this copyright law obligation by transferring it from the public law obligation, as copyright monitoring is much more complicated and costly within China's online environment. Access to content does not necessarily indicate a platform's ability to figure out content's copyright authorization status. China should retain adopting the no copyright general monitoring obligation even considering that the public law obligation has been contextually emphasized as a mandatory obligation to platforms.

The liability of online intermediaries under European Union law

This research explores the complex and multifaceted issue of online intermediary liability. It illuminates the challenges arising from the absence of uniform regulations and the need for a collaborative system between online intermediaries and rightsholders. Specifically, the article scrutinizes the liability of online intermediaries under European Union law for violations of legal interests in online content. It strives to balance intermediary liability frameworks and fair competition, drawing attention to the relationship between specific provisions and the concurrent regime outlined in the e-Commerce Directive. Moreover, the article evaluates the consistency of liability frameworks for online intermediaries and their compliance with market functioning rules under the Trade Secrets and the Unfair Commercial Practices Directives. Furthermore, the article consults the consequences of the EU Directive on Copyright in the Digital Single Market, which holds online user-generated content platforms directly responsible for infringing content. And, unlike the original draft, the final version of this directive does not impose general monitoring obligations. Nevertheless, online intermediaries may need to implement filtering measures to avoid liability for unauthorized communication of copyright-protected works to the public. The writing also considers the impact of a prior legal framework, and the Digital Service Act established to address the issue of online intermediaries being held liable for any illegal information disseminated through their platforms. The research underscores the innovative features of the Digital Services Act, acknowledging the challenges of creating a practical legal framework striving to avoid conflicts with relevant laws. Therefore, this paper sheds light on the complex nature of online intermediary liability to the EU approach accordingly.

Making the private public: Regulating content moderation under Chinese law

With the expansion of digital economy, tackling illegal online content is an increasingly challenging task. China implemented a dual-track legal mechanism on content moderation, whereby it exempts general monitoring obligations of intermediaries under private law while imposing monitoring obligations under public law. In recent years, major platforms exercise much stronger control over flow of information, regardless of more serious consequences that impact the fundamental rights of users. Meanwhile, a series of Chinese court rulings have shown that these divergent attitudes towards monitoring obligations under public and private law have given rise to legal conflicts that may deprive intermediaries of their legitimate immunity, undermining the stability and efficiency of the safe harbor rule. Furthermore, the lack of adequate legal safeguards against the risk of abusing automatic content filtering technology might transform the internet into a digital panopticon. To redraw boundaries between monitoring obligations under private and public law, future Chinese legislation should not only provide clearer clarification on the scope of monitoring, but also include a provision prohibiting general monitoring obligations in private law. To provide legal predictability for affected parties and flexibility for future technological developments, a Good Samaritan clause should be introduced in Cybersecurity Law by learning from the substance of Article 7 of the DSA.

Corporate Monitoring and Misreporting: The Role of Rules-Based and Principles-Based Accounting Standards

SUMMARY Prior research provides some evidence that strict corporate monitoring constrains financial misreporting. We examine whether the efficacy of various corporate monitoring mechanisms hinges on the nature of accounting standards—rules-based standards (RBS) versus principles-based standards (PBS)—in place. We generally document that the negative association between the likelihood of misstatements and tough monitoring by audit committees, boards, external auditors, and the SEC is more pronounced under RBS than under PBS. This evidence collectively suggests that most corporate gatekeepers fulfill their monitoring obligations primarily through ensuring better compliance with detailed standards when the applicable standards are more specific and leave less room for discretion. Although some prior studies document higher financial reporting quality under PBS, our results imply that it is important for regulators to also consider the potentially higher monitoring efficacy under RBS when setting accounting standards. Data Availability: Data are available from the public sources cited in the text. JEL Classifications: M40; M42.

Two emerging principles of EU internet law: A comparative analysis of the prohibitions of general data retention and general monitoring obligations

EU law prohibits the imposition of general data retention obligations and of general monitoring obligations. While both prohibitions are rooted in secondary EU law, the CJEU has over the past years shaped them to a high extent, often by construing them in the light of the relevant fundamental rights. This article analyses the two prohibitions in conjunction. Their scope and nature differ in some respects, which explains and justifies some of the differences apparent in the CJEU's case law. However, other differences are less easily explained and seem to point to a partially divergent approach. The combined analysis not only contributes to a better understanding of each of the two prohibitions and the case law relating thereto; it also provides indications as to how the respective lines of case law might develop in the future and it could help inform the decisions that the EU co-legislators are making concerning both prohibitions. In the process, the article tracks the emergence of these two prohibitions as general principles of EU internet law .

Dose estimates of occupational radiation exposure during radioguided surgery of Tc-99m-PSMA-labeled lymph nodes inrecurrent prostate cancer.

[99mTc]Tc-PSMA-based radioguided surgery (TPRS) represents a curative approach for localized relapse of prostate cancer. For its simplified regulatory permission, the radiation protection authorities require a 99mTc- activity below the exemption limit of 10 MBq at the time of surgery. Our aim was to determine the optimal amount of radioactivity (OAR) to comply with that limit and to estimate the maximum number of TPRS procedures per year and surgeon without triggering the full monitoring obligations. In this retrospective study, a dose rate meter was calibrated using measurements on phantoms and from recently injected (1 min p. i.) patients to determine the activity in the patient from measured dose rates. The effective half-life of 99mTc-PSMA-I&S in patients was determined from repeated dose rate measurements to estimate dose parameters of relevance for radiation protection. External exposures of the surgeons were measured with personal dosimeters calibrated in Hp(10). The surgeon's finger dose Hp(0.07) is estimated from radioactivity measured in resected lymph nodes. Potenzial incorporations were estimated for an activity of 10 MBq. From the first 6 subsequent patients, an effective half-life of 4.15 h was observed. Assuming an operation time 24 h p. i., the OAR was 550 MBq. Operations lasting in average 2 h in a distance of 0.25 m to the patient imply a body dose for surgeons of 4.16 µSv per procedure. Based on these estimates, the surgeon's Hp(10) is less than 1 mSv per year with up to 241 operations per year. Hp(0.07) and potential incorporation of activity do not lead to further limitations. All radiation protection regulations are met with adherence to OAR recommended here without triggering the full monitoring obligations from radiation protection regulations.

In Tech We Trust? Fixing the CJEU's Evolutionary Interpretation of the Prohibition of General Monitoring Obligations in the Era of Automated Content Moderation

In Glawischnig-Piesczek (C-18/18), the Court of Justice of the European Union (CJEU) held that online service providers (OSPs) can be ordered to perform global removal of all content identical or equivalent to the specific piece of information held illegal by a national court. By doing so, the CJEU relaxed the prohibition of general monitoring obligations under Article 15 of the e-Commerce Directive as it found that tools for automated content moderation (ACM) can enable OSPs to comply with broader takedown duties. The main objective of this paper is to demonstrate the flaws of the CJEU’s progressive interpretation of Article 15 of the e-Commerce Directive and indicate ways to overcome them. First, it defines the goals pursued by the prohibition of general monitoring obligations and addresses the controversy regarding its role in the context of current initiatives to make OSPs deploy ACM for proactive detection and removal of illegal content. By looking at the CJEU’s reasoning in Glawischnig-Piesczek as an important contribution to this debate, the paper contends that shrinking the prohibition of general monitoring obligations undermines the principle of legal certainty and leads to unreasonable tech solutionism. The limited reliability of ACM tools hardly makes them key to breaking a vicious circle of hate and profanity taking place online. Thus, takedown obligations of a wider scope imposed on OSPs can lead to an unlawful interference with fundamental rights of Internet users. Given the lack of uniformity among defamation laws in different states, injunctions with a worldwide effect might give rise to jurisdictional tensions. A less restrictive approach to the prohibition of general monitoring obligations can also compromise the level playing field for small- and medium-sized OSPs unable to resort to the state-of-the-art ACM systems. In light of the outlined concerns, the paper presents an alternative approach to interpretation of Article 15 of the e-Commerce Directive. It stresses the importance of preserving relevant limitations on monitoring obligations of OSPs and providing greater clarity to the notion of ‘equivalent’ content. It is also suggested that the CJEU should have also asserted that injunctions of a global scope can only be issued in exceptional circumstances, and national courts must not impose takedown duties which can be performed exclusively by means of ACM. The approach proposed is argued to promote proactive measures against illegal content without defying the purposes the prohibition of general monitoring obligations seeks to achieve.

An Endless Odyssey? Content Moderation Without General Content Monitoring Obligations

In line with the E-Commerce Directive and the Directive on Copyright in the Digital Single Market, the proposed Digital Services Act provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature. Against this background, the analysis sheds light on the general monitoring ban in the EU acquis and maps different approaches to its interpretation and implementation in practice. Based on a detailed analysis of Court of Justice jurisprudence and fundamental rights implications, the analysis leads to the insight that a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers. This insight is of particular importance because it prevents encroachments upon fundamental rights and paves the way for a proper understanding of the scope of content moderation duties.

ESD Operators: Roles and Duties for the Environmental Monitoring Activities of ARPA Puglia

ARPA Puglia (Italy), the Regional Agency for the Environmental Prevention and Protection, has chosen to use the Scientific Diving Operator figure (ESD) in order to meet some of the environmental monitoring activities foreseen by European Directives, such as WFD-Water Framework Directive 2000/60/EC and the MSFD-Marine Strategy Framework Directive 2008/56/EC. Regarding the environmental monitoring obligations of the aforementioned Directives, many of them involve underwater operations. For example, both Directives (MSFD and WFD) require Posidonia oceanica monitoring in situ, by collecting data on shoot density and other eco-biometric parameters, also describing the main ecological aspect of seagrass meadows; about Pinna nobilis, the visual census of its distribution and abundance is carried out underwater; the non-indigenous species census provided by MSFD requires the qualitative and quantitative sampling of the benthic communities of hard bottoms in harbors performed by a scratching technique. All the described activities need operations by ESDs, so ARPA Puglia developed a path for the implementation of good practices on the subject: adopting the national Guide Lines Good practices for the safe performance of the underwater activities” (ISPRA manual n. 94/2013; D.D.G. n.229/2016); identifying the diving equipment as Personal Protective Equipment (PPE); allowing the acquisition or renewal of ESD scientific license for the operational staff; allowing the annual medical check-up for the ESD operational staff; opening of a national call in order to acquire specialized figures, selected according to ESD Panel standards. Details of environmental monitoring activities carried out by ARPA Puglia ESDs are described in this document.

ALGORITHMS AND FUNDAMENTAL RIGHTS: THE CASE OF AUTOMATED ONLINE FILTERS

The information that we see on the internet is increasingly tailored by automated ranking and filtering algorithms used by online platforms, which significantly interfere with the exercise of fundamental rights online, particularly the freedom of expression and information. The EU’s regulation of the internet prohibits general monitoring obligations. The paper first analyses the CJEU’s case law which has long resisted attempts to require internet intermediaries to use automated software filters to remove infringing user uploads. This is followed by an analysis of article 17 of the Directive on Copyright in the Digital Single Market, which effectively requires online platforms to use automated filtering to ensure the unavailability of unauthorized copyrighted content. The Commission’s guidance and the AG’s opinion in the annulment action are discussed. The conclusion is that the regulation of the filtering algorithms themselves will be necessary to prevent private censorship and protect fundamental rights online.

Injunctions to Remove Illegal Online Content under the Ecommerce Directive: Glawischnig-Piesczek

Currently, the eCommerce Directive is the central legal framework for digital services in the internal market. More than 20 years after it entered into force, it still leaves room for interpretation as far as liability exemptions and monitoring obligations for digital platforms are concerned. In Glawischnig-Piesczek, the ECJ was asked to interpret Article 15(1) of the Directive, which prohibits Member States from imposing a general obligation on digital platforms to monitor the content posted by their users.

The Fate of Bryophyte Sporophytes-Phenology and Vectors of Buxbaumia viridis in the Kalkalpen National Park, Austria.

Knowledge about the epixylic moss Buxbaumia viridis has increased significantly due to the monitoring obligation under the Habitats Directive. However, there are still open questions about its dispersal, as the wind plays a limited role in forest ecosystems, and vectors have been suspected but not yet studied systematically for this species. Here, we present data on potential vectors of Buxbaumia viridis collected for the first time with the help of cameras, completed by monitoring the fate of sporophytes during their life cycle in the Limestone Alps National Park in Austria over a period of two years. Young, green sporophytes appeared mainly in autumn, with the highest number in October. Most of them survived winter and spring but did not exceed the age of 14 months. The sharpest decline in capsules occurred in summer when mature, and the lowest number of sporophytes appeared at the end of August. Most likely, mice seem to be responsible for this loss, as the photos from the wildlife cameras suggest, and should be considered both as predators and vectors. Birds should be considered as vectors, too. In summary, most of the reproductive biomass is sacrificed in favor of more effective dispersal, including over longer distances.

Regulatory overkill? A critical review of the intermediary liability in the context of the cybersecurity law in Tanzania

This article offers a critical review of the intermediary liability landscape in Tanzania. The point of departure for discussion and analysis is Part V of the Cybercrimes Act 2015, which provides a regime of intermediary liability as well as recent obligations brought about by the Electronic and Postal Communications (Online Content) Regulations 2018. Both pieces of legislation are reviewed through the lenses of international and regional best practices in this field. The main argument that is advanced in this paper is that the regime of intermediary liability in Tanzania offers limited protection to intermediaries in cases where third parties seek to hold them liable for the conduct of their users, as demonstrated by recent case law. Also, this regime imposes more obligations on the part of intermediaries to such an extent that there is a death of no monitoring obligations.

Monitoring and Filtering: European Reform or Global Trend?

This chapter of the Oxford Handbook of Online Intermediary Liability analyses the evolution of a trend towards the imposition of proactive monitoring obligations on intermediaries along the entire spectrum of intermediary liability subject-matters and magnifies on the reform within the European Union (EU) copyright law framework. Article 17 of the newly enacted EU Directive on the Digital Single Market has come under fire for the heightened level of liability it imposes on online services providers (OSPs) for copyright infringing content stored or transmitted by them. Based on an analysis of case-law from multiple jurisdictions and an overview of industry practice, this chapter seeks to locate the new European reform within a much wider global trend that aims to impose proactive monitoring and filtering obligations on OSPs. It argues that the impetus for the introduction of Article 17 is rooted in the ‘Internet threat’ discourse and reflects a gradual shift in the perception of OSPs from being ‘mere-conduits’ to ‘active gate-keepers’ of content uploaded and shared by users. Following an evaluation of the extent to which Article 17 diverges from the existing intermediary liability framework in the EU, the chapter concludes by analyzing its potential impact on users’ fundamental rights and freedoms, particularly in the light of its propensity to motivate wider use of automated filtering systems and algorithmic enforcement mechanisms.

The Common European Asylum System: Balancing Mutual Trust Against Fundamental Rights Protection

AbstractThe Common European Asylum System constitutes one of the principal areas in which the fundamental rights of individuals are essentially placed in competition with the core principle of mutual confidence and the need to preserve the effectiveness of EU law. That competitive relationship becomes particularly evident when applicants for international protection rely on alleged violations of their fundamental rights in order to contest their transfer to the Member State that is normally responsible for examining their asylum request according to the criteria of the Dublin III Regulation. The balancing process that needs to be carried out in this respect and the measure of the monitoring obligation that EU law imposes on the receiving Member State regarding the protection of the fundamental rights of asylum seekers are well exemplified by the preliminary ruling in Jawo. That case provides additional clarification regarding the circumstances in which the protection of fundamental rights may introduce exceptions to the principle of mutual trust. At the same time, it illustrates the inherent tensions that exist between the protection of fundamental rights and the application of the principle of mutual confidence.

Mainstreaming health impact assessments in environmental impact statements into planning obligations in post dam construction in Metolong, Lesotho: A qualitative investigation

Health impact assessment (HIA) is internationally identified as a mechanism for ensuring that potential health impacts of project proposals are considered before project implementation. This study examined the inclusion of HIAs in environmental impact statement (EIS) and their translation into planning obligations of a dam project in Lesotho. A framework premised on the general systems theory, and integrating EIS contents, environmental management plans and monitoring obligations in post dam construction was used as the analytic lens. A review of the EIS was conducted to assess HIAs covered during the environmental impact assessment (EIA) of the dam. Data drawn from selected household questionnaire interviews and analysis of related documents was used to assess the extent of HIA mainstreaming into planning and monitoring obligations in post dam construction. Results showed inclusion of HIAs in EIS, including endemic diseases such as sexually transmitted infections (STIs) and HIV/AIDS, acute respiratory infections, pharyngitis, hypertension, influenza and diarrhea. Social, economic and environmental conditions were identified as major determinants of health; while mental and nutritional determinants of health were less discussed. The results also showed that some HIAs included in EIS influenced decision-making in relation to raising awareness of health issues in the community. Deficiencies were however reported by respondents in relation to mainstreaming of several HIA recommendations. HIAs can be useful in promoting community health and mitigating adverse impacts of decisions made by project proponents.

Article 17 of the Directive on Copyright in the Digital Single Market: A Fundamental Rights Assessment

Article 17 of the Directive on Copyright in the Digital Single Market (CDSMD) was one of the most contested provisions in the legislative process of the EU copyright reform. Its adoption was accompanied by widespread protests by citizens, as well as criticism from academics and fundamental rights advocates. The Republic of Poland has brought an action for annulment of certain provisions of Article 17 CDSMD before the CJEU (Case C-401/19), arguing that provisions of Article 17 violate the fundamental right to freedom of expression and information. The case before the Court has far-reaching implications beyond the realm of copyright law, as similar sector-specific legislation is being considered in other areas, and the European Commission is in the process of drafting horizontal legislation on content moderation. While Poland has only raised concerns regarding the violation of the fundamental right to freedom of expression and information, we point out that the Court is entitled to a comprehensive assessment of the provisions in question, balancing all fundamental rights concerned. This paper analyses recent European case law to demonstrate that Article 17 CDSMD fails to strike a fair balance between the affected fundamental rights, including the platforms' freedom to conduct a business and the users' rights to privacy and data protection. We argue that platforms within the scope of the CDSMD are de facto obliged to employ content recognition technologies (upload filters). We show that the interpretation of the ban on general monitoring found in the literature, according to which upload filters as foreseen by Article 17 CDSMD are compatible with the ban on general monitoring, are incompatible with the CJEU case law. Article 17 CDSMD not only constitutes a prohibited general monitoring obligation but will invariably lead to ex-ante restrictions on legal forms of expression, a particularly serious interference with the right to freedom of expression and information that has consistently been rejected by the CJEU and the ECtHR. Drawing on the cases Digital Rights Ireland and Schrems II we demonstrate that Article 17 CDSMD lacks specific provisions to define the scope of fundamental rights restrictions and fails to provide for the necessary minimal safeguards. The legislator also failes to consider the shortcomings of content recognition technologies, underestimated their cost, left the scope of the best efforts obligations placed on platforms entirely unclear, and therefore failes to adequately balance the right to intellectual property on the one hand with the freedom to conduct a business, the right to freedom of expression and information and the right to privacy and data protection on the other.

Intellectual Property from a Global Environmental Law Perspective: Lessons from Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge

AbstractThis commentary considers the intellectual property (IP) system from a global environmental law perspective by exploring the extent to which patent-related treaties, such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization Patent Cooperation Treaty, can facilitate implementation of global environmental standards in the field of biodiversity law. It provides practical guidance to countries that wish to introduce patent disclosure-related mechanisms into their legal systems with a view to mainstreaming instances of global justice, fairness and equity, and raises awareness of the limitations arising from their extant IP obligations. Global environmental law standards have exercised an undeniable influence on the political discourse in international IP policy making in the field of patent disclosure. Still, many patent disclosure requirements that pre-date the Nagoya Protocol apply only to genetic resources the provenance of which is the same country that established the requirement. However, if a country designates its patent or IP office as a compliance checkpoint under the Nagoya Protocol, then the disclosure requirement should encompass at least the genetic resources originating from all countries that are contracting parties to this instrument. This could allow the fulfilment of a core monitoring obligation of the latter, while enabling wider synergies and transparency within the IP system.

EU Directive on Copyright in the Digital Single Market and ISP Liability: What's Next at International Level?

The recent approval of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) by the European Union has caused a considerable storm among the internet users, scholars, practitioners and industries. Particularly controversial was the original obligation of ISPs to filter the content upload by platforms users with the purpose of avoiding copyright infringements in the draft of Article 13. For this reason, the Directive has been even named the “death of the internet”. The final text (renumbered in Art. 17) provides for no general monitoring obligation, however, the ISPs will likely be required to implement filtering measures to avoid liability for unauthorized acts of communication to the public, including making available to the public, of copyright-protected works. Therefore, the DSM Directive has introduced a European regime of ISPs liability that stands in contrast with the existing laws in countries outside the EU. This lack of harmonization will have a negative impact in the ISPs and will eventually lead to a slowdown of internet at a global scale. In order to limit these consequences, this Article proposes the adoption of an International Treaty in the WIPO that sets forth minimum standards on the role of the ISPs, the liability of the ISPs and safe harbors. The proposed Treaty gives freedom to States to require or not filtering obligations. Any filtering requirements should be specific, limited, subject to human review, and should not impose substantial costs on ISPs.

Intellectual Property from a Global Environmental Law Perspective: Key Lessons from the Implementation of Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge

This commentary considers the intellectual property (IP) system from a global environmental law perspective by exploring the extent to which patent-related treaties, such as the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization (WIPO) Patent Cooperation Treaty, can facilitate implementation of global environmental standards in the field of biodiversity law. The commentary aims to provide practical guidance to countries that wish to introduce patent disclosure-related mechanisms into their legal systems with a view to mainstreaming instances of global justice, fairness and equity, and raises awareness of the limitations arising from their extant IP obligations. Global environmental law standards have exercised an undeniable influence on the political discourse in international IP policy making in the field of patent disclosure. However, many pre-Nagoya Protocol patent disclosure requirements only apply to genetic resources whose provenance is the same country that has established the requirement. However, if a country designates its patent or IP office as a compliance checkpoint under the Nagoya Protocol, then the disclosure requirement should encompass at least the genetic resources originating from all countries that are contracting parties to this instrument. This could allow fulfilling a core monitoring obligation of the Nagoya Protocol, while enabling wider synergies and transparency within the IP system. Section 1 contextualizes the discussion of technical areas of international law – i.e. IP, access to genetic resources and associated traditional knowledge, and the fair and equitable sharing of benefits arising from their use (ABS) – and explains the relevance of the ensuing legal analysis for global environmental law and global justice. Section 2 further illustrates the frictions between global environmental law and the international IP system in the field of biodiversity. Section 3 considers the relationship between global ABS obligations and additional patent disclosure requirements. Section 4 explains selected features of patent disclosure requirements in national law and illustrates the influence of global environmental law in the development of such features. Section 5 examines patent disclosure-related mechanisms by assessing their compatibility with relevant IP law treaties. The final section concludes by drawing key lessons learned and considers their implications for the emergence of global environmental law exigencies and standards of transparency, fairness, equity and global justice under the UN Convention on Biological Diversity (CBD) and its Nagoya Protocol on ABS.