Looking above and beyond the blunt expectation: specified request as the recommended approach to intermediary liability in cyberspace
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
Published
Issue
Section
License
EJLT is an open access journal, aiming to disseminate academic work and perspectives as widely as possible to the benefit of the author and the author’s readers. It is the assumption of the EJLT that authors who publish in the journal wish their work to be available as freely and as widely as possible through the open access publishing channel.
Authors who publish with EJLT will retain copyright and moral rights in the underlying work but will grant all users the rights to copy, store and print for non-commercial use copies of their work. Commercial mirroring may also be carried out with the consent of the journal. The work must remain as published – without redaction or editing – and must clearly state the identity of the author and the originating EJLT url of the article. Any commercial use of the author’s work - apart from mirroring - requires the permission of the author and any aspects of the article which are the property of EJLT (e.g. typographical format) requires permission from EJLT.
Authors can sometimes become no longer contactable (through, for example, death or retirement). If this occurs, any rights in the work will pass to the European Journal of Law and Technology which will continue to make the work available in as wide a manner as possible to achieve the aims of open access and ensuring that an author's work continues to be available. An author - or their estate - can recover these rights from EJLT by providing contact information.
The European Journal of Law and Technology holds rights in format, publication and dissemination.
EJLT, as a non-commercial organisation - which receives donations to allow it to continue publishing – must retain information on reader access to journal articles. This means that we will not give permission to mirror the journal unless we can be provided with full details as to reader access to each and every journal article. We prefer and encourage deep linking rather than mirroring. Encouragement is thus given for all users – commercial and non-commercial – to provide indexes and links to articles in the EJLT where the index or link points to the location of the article on the EJLT server, rather than to stored copies on other servers.
Please contact the European Journal of Law and Technology if you are in any doubt as to what this statement of use covers.