Our EU Policy Principles: Platform Liability

As the European Union is gearing up for a major reform of the current backbone of the EU’s Internet regulation—the e-Commerce Directive will be replaced by the Digital Services Act (DSA)—there are choices to be made. Rather than following in the footsteps of recent disastrous Internet legislation (such as the Copyright Directive), the EU should focus on how to put users back in control of their online experiences. Rather than giving more executive power to large platforms that have monopolized the digital space, the EU should protect the public interest Internet by focusing on users’ rights to self-determination and measures on transparency, anonymity, and interoperability.

We are hopeful that the EU will move in the right direction on Internet policy, especially given that member countries have championed Internet bills that seek to create  a more restrictive European Internet. In a recent victory for free speech and the Internet, EFF helped to strike down core provisions of a French bill meant to curb hate speech, arguing that it would unconstitutionally catch legal speech in its net. Meanwhile, the infamous German law NetzDG, which requires companies to respond to reports of illegal speech within 24 hours, has been toughened to make platforms not only delete suspected criminal content, but also send reports to the federal police, including information about the user.

Rules on Liability and Monitoring: An Opportunity to Make it Right

The upcoming reform of EU Internet legislation is a great opportunity to redo some of the damage done by bad Internet bills, and to acknowledge that it is a bad idea to turn platforms into the Internet police that scan and censor billions of users’ social media posts, videos, or other forms of communication. It is also a good occasion to modernize some outdated rules and to make sure that the Internet remains an open platform for free expression.

In this post, we will explain in more detail our position against mandated monitoring and filtering of user content and why the EU should not hold platforms liable for content provided by users.

Principle 1: Online Intermediaries Should Not Be Held Liable for User Content

Intermediaries have a pivotal role to play in ensuring the availability of content and the development of the Internet. They are a driver of free speech, as they enable people to share content with audiences at an unprecedented scale. One of the reasons for the success of online intermediaries is the immunity they enjoy for third-party content. 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. If such a principle were not in place, platforms would be pushed to affirmatively monitor how users behave; would filter and check users’ content; and would block and remove everything that is controversial, objectionable, or potentially illegal to avoid legal responsibility. By the same token, users would likely not feel inclined to speak freely in the first place; they would avoid sharing their artistic expression or publishing a critical essay about political developments. Worse yet, without legal protection, service providers could easily become targets for corporations, governments, or bad actors who want to target and silence users.

The EU should therefore make sure that online intermediaries continue to benefit from comprehensive liability exemptions and not be held liable for content provided by users. The current nebulous distinction between passive and active host providers for exemptions to apply should be given up: Intermediaries should not be held liable for user content as long as they are not involved in co-creating or modifying that content in a way that substantially contributes to illegality, and provided that they do not have actual knowledge about its illegal or infringing character. Any additional obligations must be proportionate and not curtail the free expr