Intermediary Liability in the EU Digital Common Market

The European Union is committed to its transition towards climate neutrality and digital leadership, and synergies to be created in the EU Digital Common Market provide ample opportunities to achieve these goals: While from an economic perspective, the maximisation of market opportunities and the creation of a globally competitive digital economy are desirable, the transition must be technologically and ecologically sustainable and additionally compatible with established EU consumer protection standards. The latter is especially relevant in terms of the liability of online intermediaries for digital services, taking into account the rapid transformation of the digital architecture and the emergence of new major digital platforms for sales and services. This chapter, which is based on the Bachelor thesis handed in by Sander Sagar and supervised by Thomas Hoffmann for graduation at TalTech Law School, Tallinn University of Technology, intends to elucidate how the transition towards a common digital market is legally established in practice using as an example the adoption of the intermediaries’ liability regime to a digitalized environment from the E-Commerce Directive to the Digital Services Act.

Incitement to riot: intermediary liability of ISP`S

Collective actions, particularly organization, promotion, encouragement, and incitement to civil disturbances, are hard to imagine without use of information and communication technologies (ICTs). Recent events such as the Arab Spring, the colour revolutions (e.g. in former Eastern Bloc and the Balkan countries), the unrest in Minneapolis in 2020 which subsequently spread to other US cities, and the US Capitol riots 2021 present significant evidence in this regard. The dissemination of information online inciting to riots involves internet service providers (ISPs) alongside the author. The aim of the paper is to specify the actors in accordance with their functions and determine their eligibility to be prosecuted in cases of incitement to riots using ICTs. Formulated a conclusion about the onset of intermediary liability of ISPs, holding the organizational and technical capacity to influence the information social relations of their users at any time.

Elections, Institutions, and the Regulatory Politics of Platform Governance: The Case of the German NetzDG

Policy proposals for higher rules and standards governing how major user- generated content platforms like Facebook, Twitter, and YouTube moderate socially problematic content have become increasingly prevalent since the negotiation of the German Network Enforcement Act (NetzDG) in 2017. Although a growing body of scholarship has emerged to assess the normative and legal dimensions of these regulatory developments in Germany and beyond, the legal scholarship on intermediary liability leaves key questions about why and how these policies are developed, shaped, and adopted unanswered. The goal of this article is thus to provide a deep case study into the NetzDG from a regulatory politics perspective, highlighting the importance of political and regulatory factors currently under-explored in the burgeoning interdisciplinary literatures on platform governance and platform regulation. The empirical account presented here, which draws on 30 interviews with stakeholders involved in the debate around the NetzDG’s adoption, as well as hundreds of pages of deliberative documents obtained via freedom of information access requests, outlines how the NetzDG took shape, and how it overcame various significant obstacles (ranging from resistance from other stakeholders and the European Union’s frameworks against regulatory fragmentation) to eventually become law. The article argues, throughout this case study, that both domestic politics and transnational institutional constraints are crucial policy factors that should receive more attention as an important part of platform regulation debates.

Intellectual Property Law and Extra-Contractual Liability

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.

Intermediary Liability

Book review: Giancarlo Frosio (Ed.). Oxford Handbook of Online Intermediary Liability. Oxford: OUP, 2020, 800 p.

The Jurisdictional Challenge Answered—Enforcement through Gatekeepers on the Internet

Chapter 3 examines the consequences of the Jurisdictional Challenge of the internet for the enforcement of public law, such as content regulation and criminal law relating to illegal content. Internet applications such as websites, mobile apps, peer-to-peer file sharing, cyberlockers, and social media have enabled the remote sharing of illegal content and criminal interaction between people globally and across national borders. This global spread of illegal activities creates challenges for the application and enforcement of national law, as perpetrators may be remote from enforcement authorities, and content is shared instantly. The imposition of liability on intermediaries such as social media platforms as gatekeepers for law enforcement as a way of overcoming the Jurisdictional Challenge is critically discussed. Enforcement takes place against entities facilitating or enabling dissemination of illegal content or the illegal activities instead of the primary perpetrators. This strategy is used to overcome the “out of reach” problem caused by decentralization and remote targeting. This chapter critically analyses in detail the provisions on intermediary liability/immunity and recent proposals to impose a duty of care, particularly in respect of child sexual exploitation and abuse, and terrorism-related materials. It examines the German Network Law Enforcement Act and other countries’ similar initiatives (including the UK White Paper “Online Harms”) and the provisions in the revised EU AVMS Directive. It critically examines regulation by platforms themselves and the human rights implications of coregulation. Both notice and take-down regimes and blocking of internet access to material are covered, and different initiatives evaluated and compared.

Information control by public punishment: The logic of signalling repression in China

When does repression of online expression lead to public punishment of citizens in China? Chinese social media is heavily censored through a system of intermediary liability in which the government relies on private companies to implement content controls. Outside of this system the Chinese authorities at times utilize public punishment to repress social media users. Under China’s regulatory environment, individuals are subject to punishment such as fines and detention for their expressions online. While censorship has become more implicit, authorities have periodically announced cases of repression to the public. To understand when the state escalates from censoring online content to punishing social media users for their online expressions and publicizes the punishment, we collected 468 cases of state repression announced by the authorities between 1 January 2014 and 1 April 2019. We find that the Chinese authorities most frequently publicize persecutions of citizens who posted online expression deemed critical of the government or those that challenged government credibility. These cases show more evidence of the state pushing the responsibility of ‘self-regulation’ further to average citizens. By making an example of individuals who post prohibited content even in semi-public social media venues, the state signals strength and its determination to maintain authority.