Fundamental rights and private enforcement in the digital age

• DOI: http://doi.org/10.1111/eulj.12310
• Date: 01 March 2019
• Published date: 01 March 2019

SPECIAL ISSUE ARTICLE

Fundamental rights and private enforcement in the

digital age

Marco Bassini*

Abstract

This article addresses the shift inthe paradigm of fundamental rights protection on the Internet.

More and morethe enforcement of such rights is being delegated to private Internet operators,

and the urgent question is how the task of balancing conflicting rights affects the status of Inter-

net Service Providers (ISPs). The article examines the increasing privatisation of fundamental rights

enforcementon the Internet, highlighting the impact of this trend. Following the analysisof recent

developments, it argues that the pillars governing ISP liability should not be altered. In particular,

the early determination that ISPs should not be presumptively saddled with content monitoring

tasks should not be called into question. Therefore, the regulatory pressure on ISPs shouldbe

lowered, as the spectre of liability, combined with ISPs' increasing role indeciding the proper bal-

ance between conflicting rights, unduly burdens the activity of ISPs and generates incentives to

delete even lawful content.

1|INTRODUCTION

Scholars familiar with the legal issues raised by the Internet consider the Yahoo! Licra saga

1

a cornerstone. In that

case, the Tribunal de Grande Instance in Paris ordered Yahoo! to take all the necessary measures to prevent a website

hosting auctions for Nazi memorabilia from being accessed in France, in compliance with French legislation that

prohibited this type of sales. It is well known that, despite the request of the French Court, Yahoo! opted to stall

the enforcement of the judgment and to challenge its legitimacy in the US, where it sought and obtained First

Amendment protection. The case famously highlighted the different understanding of free speech in Europe and

the US

2

and illustrated the difficulty of determining the proper standard of protection thereof in the digital realm.

In addition, and more importantly for the purpose of this article, the case showed the power of Internet

*

Law Department, Bocconi University, Milan, Italy (marco.bassini.86@gmail.com).

1

TGI Paris, 22 May 2000, UEJF and Licra v. Yahoo! Inc. and Yahoo France; Yahoo! Inc. v. La Ligue Contre Le Racisme et L'antisemitisme; L'union Des Etudiants

Juifs De France, 433 F.3d 1199 (9th Cir. 2006). For some comments, see M.H. Greenberg, ‘A Return to Lilliput: The LICRA v. Yahoo –Case and the Regu-

lation of Online Content in the World Market’(2003) 18 Berkeley Technology Law Journal, 1191; J. Reidenberg, ‘Yahoo and Democracy on the Internet’

(2001–2002) 42 Jurimetrics, 261.

2

For an overview of the legal issues deriving from different views on the scope of protection of freedom of speech on the Internet, see, among others, O.

Pollicino and M. Bassini, ‘Free Speech, Defamation and the Limits to Freedom of Expression in the EU: A Comparative Analysis’, in A. Savin and J.

Trzaskowski (eds.), Research Handbook on EU Internet Law (Edward Elgar, 2014). For a broader perspective, see L. Bollinger, TheTolerant Society(Oxford Uni-

versity Press, 1986); A. Sajó, Freedom of Expression (Institute of Public Affairs, 2004); and E. Barendt, Freedom of Speech (Oxford University Press, 2007).

Received: 12 December 2018 Revised: 12 February 2019 Accepted: 17 February 2019

DOI: 10.1111/eulj.12310

182 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:182–197.wileyonlinelibrary.com/journal/eulj

intermediaries

3

to make the enforcement of fundamental rights conditional upon their own decisions, which are nor-

mally driven more by business interests than legal grounds. While courts in France and in the US definitely had their

say on whether the conduct at issue was lawful or unlawful (in their respective jurisdictions), they had instead a lim-

ited power to enforce any particular level of protection for freedom of speech. If left to a (private) digital intermedi-

ary, the role of striking the delicate balance between free speech and other rights would be informed by business

considerations rather than overarching policy reasons.

Yahoo! Licra was an early manifestation of a problem that recent cases have more comprehensively brought to

light. A worrisome trend seems to be emerging. The increasing privatisation of rights enforcement in the aftermath

of that judicial saga is likely to make the outcome of disputes depending on factors that would not be considered

in the reasoning of public authorities. Equally troubling is the fact that ISPs' presumptive immunity from liability is

being rapidly eroded as a consequence of the more and more content‐sensitive role played by digital platforms.

In fact, EU law provides ISPs with liability exemptions in relation to illegal content or activities in Articles 12ff.

of Directive 2000/31/EC (hereinafter, ‘E‐Commerce Directive’).

4

These exemptions apply to the extent the pro-

vider has no actual knowledge of third‐party illegal conduct, on the assumptions that it operates a service of a

merely passive, technical and automatic nature and exercises no editorial responsibility over third‐party content.

When the provider becomes ‘on notice’, instead, it must promptly remove the relevant content in order not to

incur secondary liability. However, the framing of these provisions appears to be critical, as the text of the E‐Com-

merce Directive: (i) fails to exhaustively specify when an ISP has to be considered ‘on notice’—leaving it an open‐

ended clause; and (ii) implies that the evaluation of the unlawful nature of the content may rest upon private

actors in the absence of a decision of a public authority that has previously declared the content at hand unlaw-

ful.

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I will therefore argue that there is an inherent ambiguity in the E‐Commerce Directive which makes the man-

agement of content by ISPs, most notably when it comes to hosting providers, even more difficult. I put this

uncertainty in connection to the risk of exercise of collateral censorship by ISPs.

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Such censorship occurs when

actors enjoying a range of discretion to determine whether to interfere with third‐party content (e.g. in case of

content that is not manifestly unlawful) face the risk of incurring severe penalties or an unfavourable legal treat-

ment in case of failure to exercise such control (i.e. if the content is later deemed unlawful by a court). These neg-

ative consequences may indirectly constitute an incentive to remove content rather than to keep the same

available; however, taken from a broader perspective, collateral censorship ultimately results in an exercise of pri-

vate powers limiting free speech.

I therefore identify an underlying paradox: on the one hand, ISPs should remain as much insensitiveas possible to

third‐party content (as they enjoy liability exemptions only as long as they exercise no control) but, on the other hand,

they feel pressure to take positive steps. This scenario is complicated by the attitude shown by some ordinary courts,

which have interpreted restrictively the said liability exemptions in the presence of factors implying, in their view, a

degree of ‘activity’in respect of third‐party content. And the more ISPs are urged to manage allegedly unlawful con-

tent, the more they face the risk of being deemed publishers and, accordingly, to lose liability exemptions.

3

Internet intermediaries include mere conduit or access providers (whose service consists of the provision of Internet connection), caching providers (whose

service consists of the temporary storage of content), hosting providers (whose service lies with the permanent storage of data). These subjects are also

named ‘Internet Service Providers’,or‘ISPs’as opposed to ‘content providers’, as they merely operate serviceswithout offering any content or exercising

any editorial control over third‐party content.

4

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular

electronic commerce, in the Internal Market (‘Directive on electronic commerce’), OJ L 178/1 of 17.7.2000.

5

The constitutional law issues raised by the evolution of the nature of Internet services have been deeply speculated on by E. Apa and O. Pollicino, Modeling

the Liability of Internet Service Providers: Google vs. Vivi Down. A Constitutional Perspective (Egea, 2013).

6

J. Balkin, ‘Free Speech and Hostile Environments’(1999) 99(8) Columbia Law Review, 2295. The collateral censorship argument was theorised in these

terms: ‘Although to my knowledge no court has yet recognized collateral censorship as a distinct doctrinal category, it appears to be a fairly common phe-

nomenon. For example, editors and publishers, driven by fear of defamation suits, may refuse to run stories by their reporters. Internet service providers,

fearing that they may be held liable for contributory infringement of copyrighted materials, may attempt to ban messages from parties suspected of dissem-

inating such materials’.

BASSINI 183