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September 29, 2017

Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy

Since the enactment of the first safe harbors and liability exemptions for online intermediaries like Google and Facebook, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging internet market. Do safe harbors for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. Today, safe harbors still hold, but secondary liability is on the rise. In its Digital Single Market Strategy, the European Commission plans to introduce sectorial legislation that would effectively erode liability exemptions for online intermediaries, especially platforms. In an attempt to close a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighboring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-Visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This Essay contextualizes the recent EU reform proposal within a broader move towards turning online intermediaries into internet police. This narrative builds exclusively upon governmental or content industry assumptions, rather than empirical evidence. Also, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Apparently, the European Commission aligns its strategy for online platforms to a globalized, ongoing move towards privatization of enforcement online through algorithmic tools. This process may advance an amorphous notion of responsibility that incentivizes intermediaries' self-intervention to police allegedly infringing activities in the internet.