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Folkert Wilman

This chapter contains an in-depth analysis of Article 14 of the e-Commerce Directive. It is shown that the scope of the liability exemption laid down therein is broad, in that it protects qualifying intermediaries from all kinds of liability in respect of all kinds of illegal content that they may store for their users. However, in other ways its scope is limited. Most notably, the liability exemption is subject to the intermediaries concerned taking expeditious action once they know about the illegal content; it does not preclude the issuance of injunctive relief against intermediaries; and it is available only to intermediaries that do not play an active role of such a kind as to give them knowledge of, or control over the content (as per the L’Oréal v. eBay judgment). Article 14 does not set out actual rules on notice and takedown procedures and allows for duties of care specified in national law.

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Folkert Wilman

This chapter discusses, first, Article 15 of the e-Commerce Directive, which prohibits Member States from imposing on intermediaries a general obligation to monitor or to engage in active fact-finding in respect of the content that they store for their users. It is clarified how such prohibited general obligations are to be distinguished from permitted obligations in specific cases. The case law relating to, and the objectives pursued by, Article 15 are also assessed. Second, the chapter analyses the most important more recent EU law measures regulating the liability and responsibilities of online intermediaries for illegal content in certain specific areas: the Audiovisual Media Services Directive, the Copyright in the DSM Directive, the Child Sexual Abuse Directive and the (proposed) Regulation on Terrorist Content Online. It is shown that, taken together, these measures embody a nascent yet incoherent EU-level duty of care for intermediaries in respect of stored user content.

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Folkert Wilman

This chapter starts answering the book’s central question: whether – and if so, how – the EU’s current regime on the liability and responsibilities of intermediaries for the user content that they store, laid down in Articles 14 and 15 e-Commerce Directive, should be revised. The regime is assessed against five general requirements: balance; effectiveness; clarity; safeguards and transparency; and proportionality and workability. It is concluded that, broadly speaking, the regime continues to allow for a legally sound, balanced and workable approach and therefore does not need a fundamental overhaul. However, the system’s effectiveness in tackling illegal online content could be improved, especially in relation to user content causing serious “public” harm and aggrieved parties’ judicial redress possibilities. Moreover, there is a lack of sufficient safeguards especially to protect users’ rights, such as binding rules on notices and takedown procedures, including counter-notice procedures, and public oversight. There is also insufficient transparency.

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Folkert Wilman

This chapter outlines possible improvements to the current EU regime. The first entails enacting binding EU rules on notice and takedown procedures, including on counter-notice procedures. This would increase the efficiency and effectiveness of the current system, which is in the interest of all parties concerned. A number of challenges must be dealt with when elaborating the details of such rules, however. The second improvement consists of establishing a proper EU legal regime on injunctions that can be issued against intermediaries. This should help tackle illegal online content more effectively, whilst also counter-balancing excessive reliance on “privatised” systems of enforcement. In view of the public interests at stake, a third improvement is strengthening public oversight. Finally, the central criterion now used for delineating the system’s scope – which turns around intermediaries’ knowledge of or control over the content that they store for their users – should be retained. However, certain specific changes could be considered in this respect.

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Folkert Wilman

This chapter contains the book’s conclusions. It starts by pointing out some general paradoxes. One is the evident public importance of the internet, whilst it is mostly operated by private parties. Another is the discrepancy between the virtual consensus on making large intermediaries subject to increased responsibilities and attempts to put this into regulatory practice typically resulting in controversy. It is further pointed out that “what is illegal offline should also be illegal online” is an unsatisfactory guiding principle, mainly because it omits the equally important counterpart: that what is legal offline should also be legal online. Finally, the book’s main recommendations are summarised: establishing rules on notice and takedown procedures; a targeted EU-level duty of care aimed at tackling certain types of very serious and manifestly illegal online content; ensuring that the duty of care is double-sided, so that users’ rights are adequately protected; rules on injunctions against intermediaries; and strengthened public oversight.

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Folkert Wilman

This chapter outlines the fundamental rights framework. It identifies freedom of expression, which includes the freedom of information, as one of the most important fundamental rights in the present context. Risks of chilling effects on freedom of expression arise in particular depending on three factors: the severity of the sanctions; uncertainty; and risks of collateral censorship related to the fact that intermediaries do not carry their own, but rather third-party content. These risks almost inevitably arises in connection to knowledge-based liability systems, such as those laid down in the e-Commerce Directive and the DMCA. In the EU, other fundamental rights can be of relevance too, however. These include the freedom to conduct a business, intellectual property, protection of privacy and personal data and effective judicial redress. Given that those fundamental rights tend to conflict and there is no formal hierarchy, a fair balance is to be struck between them.

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Folkert Wilman

This chapter sets out some of the theory and practical considerations relating to laws on intermediary liability in general. Situations arising under such laws typically involve three groups of parties: parties aggrieved by illegal user content; intermediaries storing the content; and the users of the services in question. These parties have distinct and often conflicting interests. That is shown through a discussing of a scenario whereby intermediaries are totally exempted from liability for stored user content and one whereby they are held fully and strictly liable. In practice, laws on intermediary liability tend to lie somewhere in between these two extremes, however. The decision how to find a compromise between the interests at stake is in part determined by legal-contextual factors, such as considerations of a constitutional nature.