Platform Liability Trends Around the Globe: Moving Forward

This is the final installment in a four-part blog series surveying global intermediary liability laws.  You can read additional posts here: 

• Platform Liability Trends Around the Globe: From Safe Harbors to Increased Responsibility
• Platform Liability Trends Around the Globe: Taxonomy and Tools of Intermediary Liability
• Platform Liability Trends Around the Globe: Recent Noteworthy Developments

As this blog series has sought to show, increased attention on issues like hate speech, online harassment, misinformation, and the amplification of terrorist content continues to prompt policymakers around the globe to adopt stricter regulations for speech online, including more responsibilities for online intermediaries. 

EFF has long championed efforts to promote freedom of expression and create an enabling environment for innovation in a manner that balances the needs of governments and other stakeholders. We recognize that there’s a delicate balance to be struck between addressing the very real issue of platforms hosting and amplifying harmful content and activity while simultaneously providing enough protection to those platforms so that they are not incentivized to remove protected user speech, thus promoting freedom of expression. 

Today, as global efforts to change long-standing intermediary liability laws continue, we now use a set of questions to guide the way we look at such proposals. We approach new platform regulation proposals with three primary questions in mind: Are intermediary liability regulations the problem? Is the proposed solution going to fix that problem? And can inevitable collateral effects be mitigated? 

We are hopeful that policymakers will shift in the right direction on internet policy and affirm the important role of immunity for online intermediaries in fostering an enabling environment for users’ freedom of expression. We outline our recommendations on how to do so below.

Our Recommendations

Online Intermediaries Should Not Be Held Liable for User Content

Intermediaries are vital pillars of internet architecture, and fundamental drivers of free speech, as they enable people to share content with audiences at an unprecedented scale. Immunity from liability for third-party content plays a vital role in propelling the success of online intermediaries. This is one of the fundamental principles that we believe must continue to underpin internet regulation: Platforms should not be held responsible for the ideas, images, videos, or speech that users post or share online. 

Regulators should make sure that online intermediaries continue to benefit from comprehensive liability exemptions and are not held liable for content provided by users as they are not involved in co-creating or modifying that content in a way that substantially contributes to illegality. Any additional obligations must be proportionate and must not curtail free expression and innovation.

No mandated content restrictions without an order by a judicial authority 

Where governments choose to impose positive duties on online platforms, it’s crucial that any rules governing intermediary liability must be provided by laws and be precise, clear, and accessible. Such rules must follow due process and respect the principle that it should be up to independent judicial authorities to assess the illegality of content and to decide whether content should be restricted. Most importantly, intermediaries should not be held liable for choosing not to remove content simply because they received a private notification by a user. In jurisdictions where knowledge about illegal content is relevant for the liability of online intermediaries, regulators should follow the principle that actual knowledge of illegality is only obtained by intermediaries if they are presented with an order by a court or similar authority that operates with sufficient safeguards for independence, autonomy, and impartiality. 

No Mandatory Monitoring or Filtering

Obligations for platforms to monitor what users share online have a chilling effect on the speech of users, who change their behavior and abstain from communicating freely if they know they are being