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

2017 ◽  
Author(s):  
Giancarlo F. Frosio
Keyword(s):  
Single Market ◽  
Market Strategy ◽  
Intermediary Liability ◽  
Platform Economy

scholarly journals From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Due Process ◽  
Strict Liability ◽  
Visual Media ◽  
Single Market ◽  
Fundamental Rights ◽  
Market Strategy ◽  
A Value ◽  
Legal Obligations ◽  
Harmful Content ◽  
Intermediary Liability

As part of its Digital Single Market Strategy, the European Commission would like to introduce vertical regulations, replacing — or better conflicting with — the well-established eCommerce Directive horizontal intermediary liability regime. 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. Meanwhile — under the assumption of closing a ‘value gap’ between rightholders and online platforms allegedly exploiting protected content — the Draft Directive on Copyright in the Digital Single Market would implement filtering obligations for intermediaries. Finally, the EU Digital Single Market Strategy has also endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. Each of these actions will erode the eCommerce intermediary liability arrangement by bringing in — in a way or another — proactive monitoring obligations and causing a systemic shift from a negligence-based to a strict liability regime for hosting providers. This systemic shift would apparently occur against public consensus and absent any justification based on empirical evidence. Nonetheless, it will bring about dire consequences by pushing privatization of enforcement online through algorithmic intelligence, based on murky, privately-enforced standards, rather than transparent legal obligations. This reform might cause a policy earthquake that will shake and crack EU law’s systemic consistency, due process and fundamental rights online.

scholarly journals The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Due Process ◽  
Freedom Of Expression ◽  
Strict Liability ◽  
Single Market ◽  
Fundamental Rights ◽  
Market Strategy ◽  
Online Platforms ◽  
Legislative Proposals ◽  
Intermediary Liability ◽  
Proactive Monitoring

In imposing a strict liability regime for alleged copyright infringement occurring on YouTube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that “if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.” In order to tame the monster, the Brazilian Superior Court had to impose monitoring obligations on YouTube. This was not an isolated case. Proactive monitoring and filtering found their way in the legal system as a privileged enforcement strategy through legislation, judicial decisions and private ordering. In multiple jurisdictions, recent case law has imposed proactive monitor obligations on intermediaries. These cases uphold proactive monitoring across the entire spectrum of intermediary liability subject matters: intellectual property, privacy, defamation, and hate/dangerous speech. In this context, however, notable exceptions—such as the landmark Belen case in Argentina—highlight also a fragmented international response. Legislative proposals have been following suit. As part of its Digital Single Market Strategy, the European Commission, would like to introduce filtering obligations for intermediaries to close a “value gap” between rightholders and online platforms allegedly exploiting protected content. In addition, proactive monitoring and filtering obligations would also feature in an update of the European audio-visual media legislation. Meanwhile, online platforms have already set up miscellaneous filtering schemes on a voluntary basis.In this paper, I suggest that we are witnessing the death of “no monitoring obligations,” a well-marked trend in intermediary liability policy. Current Internet policy—especially in Europe—is silently drifting away from a fundamental safeguard for freedom of expression online. In this respect, this paper would like to contextualize this trend within the emergence of a broader move towards private enforcement online. The EU Digital Single Market Strategy apparently endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. As I argued elsewhere, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention. In addition, filtering and monitoring will be dealt almost exclusively by intermediaries through automatic infringement assessment systems. Due process and fundamental guarantees get mauled by algorithmic enforcement, limiting enjoyment of exceptions and limitations, use of public domain works, and silencing speech according to the mainstream ethical discourse. The upcoming reform—and the border move that it portends—might finally slay “no monitoring obligations” and fundamental rights online, together with the untameable monster.

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

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
European Commission ◽  
Visual Media ◽  
Single Market ◽  
Market Strategy ◽  
A Value ◽  
Online Platforms ◽  
Harmful Content ◽  
Intermediary Liability ◽  
Secondary Liability ◽  
Safe Harbours

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours 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. Apparently, safe harbours still hold, although secondary liability is on the rise. As part of its Digital Single Market Strategy, the European Commission would like to introduce sectorial legislation that would de facto erode liability exemptions for online intermediaries, especially platforms. Under the assumption of closing a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighbouring 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 paper would like to contextualize 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 might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet.

scholarly journals Intellectual Property Law and Extra-Contractual Liability

2021 ◽  
pp. 82-95
Author(s):  
Giancarlo Frosio
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
The United States ◽  
The European Union ◽  
Trademark Infringement ◽  
The World ◽  
Emerging Issues ◽  
Intermediary Liability ◽  
Intellectual Property Infringement ◽  
Platform Economy

This chapter discusses intellectual property (IP) and extra-contractual liability by highlighting general comparative analysis issues within civil and common law systems, with some consideration given also to major theoretical clusters that might influence the different legal regimes. The chapter focuses on emerging issues of extra-contractual liability for intellectual property infringement in the platform economy, with special emphasis on copyright and trademark infringement, seeking to co-ordinate miscellaneous approaches from the United States (US), the European Union (EU), and selected European countries’ experiences. In doing so, this chapter highlights research and methodological issues related to limited harmonization at a regional level in secondary and extra-contractual liability doctrines when applied to IP. Finally, this chapter describes the World Intermediary Liability Maps (WILMap) as an attempt to provide consistency within a fragmented research framework while also presenting other miscellaneous endeavours seeking the same goal.

scholarly journals Digital Single Market: a long way to go

2018 ◽  
Author(s):  
Viola Elam
Keyword(s):  
Service Providers ◽  
Single Market ◽  
Digital Environment ◽  
Market Strategy ◽  
Origin Principle ◽  
Legislative Proposals ◽  
Exceptions And Limitations ◽  
Near Future ◽  
Legislative Measures ◽  
The Eu

This paper provides an overall assessment of recent initiatives devised by the European Commission as part of the Digital Single Market Strategy (“DSMS”) and beyond. A connecting thread running through various policy documents and legislative proposals is the principle of copyright territoriality. Copyright’s territorial nature is identified as a great hindrance to the establishment and smooth functioning of an internal market for digital content and services, since it contributes to the cumbersomeness of rights clearance, territorial exclusivity and geo-blocking practices. Nonetheless, the initial policy options, geared towards a substantial erosion of copyright territoriality, have not been articulated in concrete legislative measures. The Commission has finally opted for a considerably less ambitious approach, which purports to mitigate some minor side effects of territoriality. The proposal seeking to mandate full accessibility of content across the EU was watered down to accommodate concerns expressed by the majority of stakeholders in the creative industry. The efforts to tackle geo-blocking are not addressed to providers of audio-visual content and copyright-protected works. The extension of the “country of origin” principle is limited to services ancillary to broadcasts. Likewise, cross-border “portability” of content does not offer a real solution to dismantling national barriers in the European digital environment. Hence, copyright will remain territorially grounded and a full integration of markets for creative content will not become a reality, at least in the near future. This paper discusses the potential lack of continuity between the overarching aims expressed in the DSMS and subsequent legislative steps, and criticises the use of terminology leading to legal uncertainty. The newly introduced neighbouring right for press publishers might represent an additional source of territorial fragmentation. The (general monitoring) obligation imposed on information society service providers requires strict scrutiny. This paper, however, values the adoption of regulations, entailing a deeper level of harmonisation, and the provision of mandatory exceptions and limitations

A New Liability Regime for Illegal Content in the Digital Single Market Strategy

2020 ◽  
pp. 294-311
Author(s):  
Maria Lillà Montagnani
Keyword(s):  
Single Market ◽  
Market Strategy ◽  
Online Platforms ◽  
European Institutions ◽  
Harmful Content

This chapter reviews developments in the regulation of online platforms as a result of the European Digital Single Market (DSM) strategy. In order to show a shift from a conditional liability regime to an organizational one—that is, a regime where liability depends on the structure adopted by the undertaking in relation to the diverse types of content—this chapter unpacks the category of illegal content (copyright infringing content, harmful content, and misleading content) and details for each type the obligations that have been envisaged by the European institutions. In doing so, the chapter establishes the boundaries of the online intermediaries’ liability regime for illegal content that is emerging within the DSM strategy, analyses its main features, and addresses its coherence.

scholarly journals The European Metrology Cloud: Impact of European Regulations on Data Protection and the Free Flow of Non-Personal Data

2019 ◽  
Author(s):  
Florian Thiel ◽  
Jan Wetzlich
Keyword(s):  
Data Protection ◽  
Economies Of Scale ◽  
Personal Data ◽  
Single Market ◽  
Free Flow ◽  
The European Union ◽  
Legal Metrology ◽  
Market Strategy ◽  
System Architectures ◽  
Market Surveillance

New digital technologies, such as cloud computing, big data, artificial intelligence and the Internet of Things (IoT) are designed to maximize efficiency, enable economies of scale and develop new services. They offer benefits to users, such as agility, productivity, speed of deployment and autonomy. In the sector of Legal Metrology, it must be ensured that digital system architectures, digital services, and digital infrastructures are legally compatible. To benefit the stakeholders in this sector, the industry, the notified bodies and the market surveillance/verification authorities alike, the digital transformation of Legal Metrology shall remove barriers to innovation within the legal processes and reduce costs and time to market for new digital products. To this end a European consortium has formed to establish a digital quality infrastructure; the “European Metrology Cloud”, designed to support the processes of conformity assessment and market surveillance/verification and the development of reference architectures and new technology- and data-driven services for this infrastructure. With this approach, the digital single market that the European Commission envisions will be fostered. This article analyzes how recent regulations within the digital single market strategy of the commission - the Data Protection Police Directive (2016/679/EU) and the Regulation on a framework for the free flow of non-personal data in the European Union (Regulation (EU) 2018/1807) – may be integrated into the European Metrology Cloud initiative to, e.g. guaranty that its underlying Blockchain approach complies to these norms and exploit their benefits.

scholarly journals Market Definition in the Platform Economy

2021 ◽  
pp. 1-37
Author(s):  
Jens-Uwe FRANCK ◽  
Martin PEITZ
Keyword(s):  
Network Effects ◽  
Current Practice ◽  
Single Market ◽  
Market Definition ◽  
Market Participants ◽  
Market Linkages ◽  
Homing Behaviour ◽  
Economic Forces ◽  
Platform Economy

Abstract The article addresses the role market definition can play for EU competition practice in the platform economy. The focus is on intermediaries that bring together groups of users whose decisions are interdependent, which therefore are commonly referred to as ‘two-sided platforms’. We address challenges to market definition that accompany these cross-group network effects, assess current practice in a number of competition cases, and provide guidance for adapting practice to properly account for the economic forces shaping markets with two-sided platforms. We ask whether and when a single market can be defined that encompasses both sides. We advocate a multi-markets approach that takes account of cross-market linkages, acknowledges the existence of zero-price markets, and properly accounts for the homing behaviour of market participants.

Sign in / Sign up

Export Citation Format

Share Document