Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability

Abstract

In recent years, Europe's highest courts have searched for the answer to the problem of intermediary liability in the notion of a 'fair balance' between competing fundamental rights. At the same time, the 'notice-and-takedown' system, which first emerged as a solution to intermediary liability in the 90s, has spread across the globe, transforming along the way into an assortment of 'notice-and-action' variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting 'fair balance' as a call for compromise, we propose a move away from the traditional 'horizontal' approach of the EU's safe harbour regime, towards a more 'vertical' scheme, whereby distinct 'actions' are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-andtakedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-staydown are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer 'fair balance' in this difficult area of law.

‘Notice and staydown’ and social media: amending Article 13 of the Proposed Directive on Copyright

“…On the one hand, academics such as, Lucas-Schoetter (2017) argue that Article 13 of the Copyright Directive is a balanced text that despite attracting heavy criticisms, is entirely consistent with the Community acquis and contravenes neither the EU Charter of Fundamental Rights, nor the E-Commerce Directive (Lucas-Schoetter 2017, 21). On the other, a growing body of legal scholarship has warned of the risks and challenges associated with content recognition and filtering systems (Angelopoulos and Smet 2016;Stalla-Bourdillon et al 2016;Angelopoulos 2017;Frosio 2017;Senftleben et al 2017). Equally, as of 6 September 2017, TorrentFreak reported on its blog that digital activists and Member States have argued that notice and staydown could be incompatible with both the EU Charter and CJEU case-law.…”

Governing online platforms: From contested to cooperative responsibility

“…Much recent discourse on the public responsibility of platforms pivots on the question of whether or not platforms can be held accountable, legally and morally, for what is "shared" through them. From the legal point of view, this discussion is grounded in the host-editor dichotomy that informs much of the existing discourse (Horten 2016;Angelopoulos and Smet 2016;Hoboken 2009;Helberger 2011). This means that either platform owners qualify as hosts, with the consequence that they fall under the European e-Commerce regime 1 and are responsible under strictly limited conditions, or they are categorized as editors, having full legal responsibility for what is shared through their platforms (Council of Europe 2011, para.…”

Primary Presumptions for Website Operator’s Liabiilty for Offensive Comments

“…It simply stated in Pihl v. Sweden case that, contrary than in Delfi AS v. Estonia case, the comment that appeared on the blog did not incite violence and hatred, therefore, it was not clearly unlawful. Thus, basically it is not clear how one should properly distinguish a simply insulting or defamatory comment from a pronouncement that incites hatred and violence, which already would be treated as clearly unlawful (Angelopoulos & Smet, 2016). Paradoxically, online intermediaries, in their discretion evaluating the unlawfulness of comments, are in some sense now acting as human rights arbiters (Jørgensen & Pedersen, 2017).…”