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

2016 ◽  
Vol 8 (2) ◽  
pp. 266-301 ◽  
Author(s):  
Christina Angelopoulos ◽  
Stijn Smet
Keyword(s):  
Fundamental Rights ◽  
Intermediary Liability ◽  
Fair Balance

Sketching the outline of a ghost: the fair balance between copyright and fundamental rights in intermediary third party liability

Info ◽  
2015 ◽  
Vol 17 (6) ◽  
pp. 72-96 ◽  
Author(s):  
Christina Angelopoulos
Keyword(s):  
Design Methodology ◽  
Fundamental Rights ◽  
Third Party ◽  
Content Type ◽  
Underdeveloped Area ◽  
Legal Method ◽  
Practical Effect ◽  
Intermediary Liability ◽  
Copyright Enforcement ◽  
Fair Balance

Purpose – The purpose of this article is to analyse the concept of a fair balance between conflicting fundamental rights in the context of intermediary liability for third party copyright infringement. Design/methodology/approach – European Legal Method. Findings – Fair balance is the appropriate conflict resolution mechanism in cases of fundamental rights clashes. Balancing is in essence a call for rational judicial deliberation. In intermediary liability, balancing excludes the imposition of filtering obligations on intermediaries for the purpose of copyright enforcement, but allows blocking. Originality/value – An in-depth look at a complicated, vague and underdeveloped area of law with significant practical effect.

Intermediary Liability and Online Trade Mark Infringement: Emerging International Common Approaches

2020 ◽  
pp. 368-380
Author(s):  
Frederick Mostert
Keyword(s):  
Freedom Of Expression ◽  
Trade Mark ◽  
International Perspective ◽  
Fundamental Rights ◽  
Trade Mark Infringement ◽  
Intermediary Liability ◽  
Ius Gentium ◽  
Fair Balance ◽  
Blocking Injunctions ◽  
Voluntary Cooperation

This chapter discusses intermediary liability for trade mark infringement from an international perspective. Given that the lack of uniform international guidelines has made tackling counterfeits in a borderless digital environment even more challenging, this chapter shows that there are emerging intermediary liability common approaches at the international level for online trade mark infringement. The chapter outlines three common tenets that can be distilled into a transnational principle of intermediary liability, including knowledge-and-takedown obligations and availability of blocking injunctions. Further, this chapter discusses how this emerging common international principle is then coupled by a ius gentium of voluntary measures that results from voluntary cooperation between online intermediaries and rightholders to curb infringement. However, it is important to strike a fair balance with other fundamental rights, such as freedom of expression, information and lawful competition.

Zwierzynski v. Poland

2001 ◽  
Vol 12 (5-6) ◽  
pp. 367-370
Keyword(s):  
Moral Obligation ◽  
The State ◽  
Fundamental Rights ◽  
Public Order ◽  
General Interest ◽  
Public Authorities ◽  
The Public ◽  
The Guardian ◽  
Fair Balance

Any interference with the protection of property had to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The requisite balance would not be struck where the person concerned bore an individual and excessive burden. Where an issue in the general interest was at stake it was incumbent on the public authorities to act in an appropriate manner and with utmost consistency. In addition, the State, as the guardian of public order, had a moral obligation to lead by example and it had a duty to ensure that its organs charged with the protection of public order enforced observance of that obligation.

Intermediary Liability and Fundamental Rights

2020 ◽  
pp. 137-152
Author(s):  
Christophe Geiger ◽  
Giancarlo Frosio ◽  
Elena Izyumenko
Keyword(s):  
Freedom Of Expression ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Fine Tuning ◽  
Intermediary Liability ◽  
The Right

This chapter sets the stage for considering the tension between intermediary liability and fundamental rights with special emphasis on the European legal framework. Competing fundamental rights, such as freedom of expression, privacy, freedom of business, and the right to property are entangled with the intermediary liability conundrum. Policymakers are still in search of a balanced and proportional fine-tuning of online intermediaries’ regulation that might address the miscellaneous interests of all stakeholders involved, with special emphasis on users’ rights. In this context, the increasing reliance on automated enforcement technologies, which will be the topic of further review in multiple chapters throughout the Handbook, might set in motion dystopian scenarios where users’ fundamental rights are heavily undermined.

Monitoring and Filtering: European Reform or Global Trend?

2020 ◽  
pp. 543-565 ◽  
Author(s):  
Giancarlo Frosio ◽  
Sunimal Mendis
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Eu Directive ◽  
Global Trend ◽  
Industry Practice ◽  
Eu Copyright Law ◽  
Enforcement Mechanisms ◽  
Intermediary Liability ◽  
Fundamental Rights And Freedoms ◽  
Proactive Monitoring

This chapter 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 focuses on the recent EU copyright law reform. Article 17 of the newly enacted EU Directive on copyright in 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 analysing 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.

G.L. v. Italy

2000 ◽  
Vol 11 (7-8) ◽  
pp. 441-447
Keyword(s):  
Property Rights ◽  
Fundamental Rights ◽  
General Interest ◽  
Judicial Decision ◽  
Wide Margin ◽  
Judicial Decisions ◽  
Margin Of Appreciation ◽  
The Right ◽  
Relationship Of ◽  
Fair Balance

An interference with property under the second paragraph of Article 1 of Protocol No. 1 must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. The Italian system of staggering of the enforcement of court orders of evictions is not in itself open to criticism, having regard in particular to the margin of appreciation permitted. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord's property rights are neither arbitrary nor unforeseeable. In this case, the landlord had to wait six years and could not apply to a judge for either enforcement or compensation for the delay. Moreover, the right to a court also protects the implementation of final, binding judicial decisions, which cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be unduly delayed. While States may, in exceptional circumstances and by availing themselves of their margin of appreciation to control the use of property, intervene in proceedings for the enforcement of a judicial decision, the consequence of such intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined.

A playmaker and moderator: Lord Reid and the framing of the Malayan federal constitution

2019 ◽  
Vol 50 (3) ◽  
pp. 431-449
Author(s):  
Joseph M. Fernando
Keyword(s):  
Interest Groups ◽  
Federal Government ◽  
Critical Role ◽  
Vital Role ◽  
Fundamental Rights ◽  
Diverse Population ◽  
Competing Interests ◽  
Federal Constitution ◽  
Competing Demands ◽  
Fair Balance

Lord Reid played a vital role as chairman in a Commonwealth commission in framing the Malayan Independence constitution between 1956 and 1957. The Scottish Lord of Appeal sought to ensure the commission's impartiality and to achieve a fair balance between the demands of the various interest groups. The Federation of Malaya was a complex emerging nation-state with a diverse population and the framers had to manage competing interests and demands. This article, through a close examination of the primary constitutional documents, considers Reid's influence on the framing of the Malayan (and hence, Malaysian) federal constitution. The article begins with a brief discussion of Lord Reid's appointment to head the commission and then considers in some depth areas where his influence on the framing of the draft constitution is evident. The article argues that Reid was the main playmaker and moderator during the constitution-framing process and played a critical role in ensuring a balance was achieved between the competing demands of the federal government and the states, safeguarding the fundamental rights of the citizens against the state, and in moderating the various communal demands.

A critical analysis of the effects of the Central Bank of Nigeria foreign exchange policy on financial inclusion, anti-money laundering measures and fundamental rights

2017 ◽  
Vol 20 (4) ◽  
pp. 417-427
Author(s):  
Ehi Eric Esoimeme
Keyword(s):  
Human Rights ◽  
Central Bank ◽  
Foreign Exchange ◽  
Money Laundering ◽  
Financial Stability ◽  
Oil Prices ◽  
Fundamental Rights ◽  
Financial Inclusion ◽  
Content Type ◽  
Fair Balance

Purpose Following the drop in crude oil prices from a peak of US$114 per barrel in July 2014 to as low as US$33 per barrel in January 2016, the country’s reserves have suffered great pressure from speculative attacks, round tripping and front loading activities by actors in the foreign exchange (forex) market. The fall in oil prices also implied that the Central Bank of Nigeria’s (CBN) monthly foreign earnings had fallen from as high as US$3.2bn to current levels of as low as US$1bn. The net effect of these combined forces unfortunately is the depletion of the nation’s forex reserves. As of June 2014, the stock of forex reserves stood at about US$37.3bn but has declined to around US$28.0bn as of today. To avoid further depletion of reserves, the CBN adopted a number of policies including the prioritisation of the most critical needs for forex. This paper aims to critically analyse the effects of these policies on financial inclusion, anti-money laundering (AML) measures and human rights. Its aim is also to determine whether CBN’s Forex Policy does strike a fair balance between financial stability, inclusion, AML measures and human rights. Design/methodology/approach This paper relies mainly on primary and secondary data drawn from the public domain. It also relies on documentary research. Findings This paper determined that the CBN forex policy does not strike a fair balance between financial stability, inclusion, AML measures and human rights. Research limitations/implications This paper focuses on the effect of the most recent CBN Forex Policies on financial inclusion, AML measures and human rights. It does not address the older policies. Also, it does not address other vulnerable groups like low-income households. Its focus is on the under-served group. Originality/value While many have written papers on CBN’s forex policies, none of those papers critically analysed the effects of these policies on financial inclusion, AML and fundamental rights. The Lagos Chamber of Commerce and Industry, for example, analysed the impact of these polices on the financial services sector; the manufacturing sector; food and household products; tyre and rubber industry; pharmaceutical sector, oil and gas sector; free trade zone sector; furniture manufacturers; and foam manufacturers. It made no mention of inclusion, money laundering and fundamental rights. Also, Vincent Haruna analysed the effect of these policies on Nigerians, particularly those engaged in international trade, and those who have children studying abroad. He neither specifically addressed financial inclusion nor did he make any mention of human rights and money laundering.

scholarly journals To Filter or Not to Filter? That Is the Question in EU Copyright Reform

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fundamental Rights ◽  
Digital Environment ◽  
Negative Externalities ◽  
Liability Rule ◽  
The Public ◽  
Alternative Proposal ◽  
Intermediary Liability ◽  
The Eu

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures — such as content id technologies — to prevent copyright infringement on online platforms. This proposal is included in Article 13 — and accompanying Recitals — of the European Commission’s Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcoming of this proposed reform, which might fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law — such as GSMedia, Ziggo and Filmspeler — struggling with the notion of communication to the public in the digital environment. It highlights systemic inconsistencies between the traditional knowledge-and-take-down negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy of filtering — and monitoring — measures within a fundamental rights perspective by considering proportionality between property rights’ enforcement and competing fundamental rights — such as freedom of expression, freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatical engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy’s virality, while limiting negative externalities on users’ rights.

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