Looking above and beyond the blunt expectation: specified request as the recommended approach to intermediary liability in cyberspace

Krzysztof Garstka

Abstract


Following the publication of the Digital Single Market agenda, it became clear that establishing the place of online intermediaries in the regulatory framework for combating illicit content on the Internet remains one of the key challenges for European regulators. This article looks at the landscape of corresponding enforcement strategies within the European Union and unravels two competing conceptual approaches in relation to the role of online intermediaries. The first one, characterised as "blunt expectation" is based on exploiting the intermediaries' fear of liability for the actions of their users, in order to have the former take unspecified actions towards the infringements, or refrain from conducting their services altogether. The second approach, labelled as "specified request", is based on requiring the intermediaries to implement specific procedures or elements of infrastructure, with the liability arising not from the infringements of the users, but from the lack of compliance with the stipulated requirements. After comparing the merits and demerits of both approaches, the author puts forward an argument in support of greater reliance on the specified request approach, and elucidates the challenging, yet worthwhile path to its implementation within the EU.

Keywords: Intermediary liability; content liability; EU law; information technology law; copyright; trademarks; privacy; defamation; E-Commerce Directive; human rights


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