Valentina Golunova, ‘Intermediary Liability and Freedom of Expression in the Algorithmic Age: Swaying the Balance?’

The ‘safe harbour’ regime enshrined in the e-Commerce Directive is currently at a crossroads. As modern hosting providers have developed technical capabilities to tackle illegal user-generated content in a swift and efficient manner, both policymakers and judges are struggling to ascertain whether these providers should still be exempted from liability for transmitting or storing such content. This paper argues that the sweeping development of algorithmic content moderation prompts the constriction of the ‘safe harbour’ enjoyed by providers and could ultimately hamper freedom of expression on the Internet. By proactively removing content with the help of algorithmic tools, providers might become ineligible for the liability exemption as their activities could be seen as active rather than merely technical or automatic. Furthermore, providers that have deployed algorithms to weed out third-party infringements might be subject to more strenuous tests of knowledge and expeditious action. The advent of algorithmic content moderation is also gradually diluting the prohibition of general obligation obligations as it leads courts to assign large-scale inspection duties to providers. It is contended that the ongoing corruption of liability protections might induce providers to err on the side of caution and engage in the disproportionate removal of legitimate content. In view of this pressing issue, this paper calls for legislative action to reaffirm the boundaries of the ‘safe harbour’ and safeguard freedom of expression online.

Golunova, Valentina, Intermediary Liability and Freedom of Expression in the Algorithmic Age: Swaying the Balance? (November 20, 2021) in Hervé Jacquemin (ed), Time to Reshape the Digital Society – 40th anniversary of the CRIDS (Larcier 2021), pp 387-403.

First posted 2021-11-23 17:00:50

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