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.
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-
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.
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.
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.
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.
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).
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’.