Taking fundamental rights seriously in the Digital Services Act's platform liability regime

• Published date: 01 January 2023
• Author: Giancarlo Frosio,Christophe Geiger
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12475

VARIETY: ORIGINAL ARTICLE

Taking fundamental rights seriously in the Digital

Services Act's platform liability regime

Giancarlo Frosio | Christophe Geiger

*

Abstract

This article highlights how the EU fundamental rights framework should inform the liability regime

of platforms foreseen in secondary EU law, in particular with regard to the reform of the

E-commerce directive by the Digital Services Act. In order to identify all possible tensions between

the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in

order to contribute to a well-balanced and proportionate European legal instrument, this article

addresses these potential conflicts from the standpoint of users (those who share content and those

who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intri-

cate landscape of online intermediary liability, interrogating how the E-Commerce Directive and the

emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries

and upholding the competing rights of other stakeholders. The article then navigates in Section 3

the fraught terrain of fundamental rights as articulated by the European Court of Human Rights

(ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European

Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the

DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy

rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate rela-

tionship between fundamental rights and the DSA reform. This section conducts a comprehensive

analysis of the key provisions of the DSA, emphasising how they underscore the importance of fun-

damental rights. In addition to mapping out the strengths of the framework the section also iden-

tifies existing limitations within the DSA and suggests potential pathways for further refinement

* Giancarlo Frosio is a Professor of Intellectual Property and Technology Law and Director of the Global Intellectual Property and Technology (G-IPTech)

Centre at the School of Law of Queen's University Belfast, Non-Resident Fellow at the Stanford Law School Center for Internet and Society, and

Associate Faculty at the NEXA Center for Internet and Society; Christophe Geiger is Professor of law at the Luiss Guido Carli University in Rome (Italy),

Global Visiting Professor of Law, New York University School of Law, US (Fall 2023) and President of the International Association for the Advancement

of Teaching and Research in Intellectual Property (ATRIP). The authors are extremely grateful to Khrystyna Fedunyshyn, Doctoral Candidate at the

University of Strasbourg, for her invaluable contribution in the completion ofthis research project. The authors would further like to thank Elena

Izyumenko, Assistant Professor at the Institute for Information Law at the University of Amsterdam for her valuable comments on the draft. They are

further deeply indebted to Frasier Simpson for outstanding editing support and Varnita Singh for excellent research support in early stages of the

drafting of this study. Finally, the authors would like to thank Copyright for Creativity (C4C) for supporting this research project.

Funding information: Copyright for Creativity (C4C)

Received: 6 October 2023 Accepted: 9 October 2023

DOI: 10.1111/eulj.12475

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Authors. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2023;29:31–77. wileyonlinelibrary.com/journal/eulj 31

and improvement. This article concludes by outlining key avenues for achieving a balanced and fun-

damental rights-compliant regulatory framework for platform liability within the EU.

1|INTRODUCTION: FUNDAMENTAL RIGHTS ONLINE AND PLATFORM

LIABILITY IN THE EU

The activitiesof Digital Service Providers (DSPs)

1

in contemporaryinformation societies raisea number of ethical,legal,

and social challenges. Some DSPs are in a unique position to influence users' ability to access information and their

interactionwith it. DSPs thus fulfil de facto an importantdemocratic function, actingas facilitators of users' speech,cre-

ativity and exchange of ideas.

2

At the same time, recent events have revived long-standing concerns regarding private

ordering and themoderating powers availableto global platforms. These powersare so pervasive that global platforms

can dramatically shape political and cultural discourse. Take, for example, Twitter's permanent suspension of a sitting

U.S. President'saccount without judicialor independent oversight.

3

Meanwhile, entrepreneurs withoutany democratic

mandate stir controversy. It is sufficient to take the example of Elon Musk's acquisition of Twitter.

4

Moreover,

Facebook's arbitrary censorship practices, which have included the banning of artworks like Michelangelo's David for

violating its standards on nudity or sexual acts, as well as iconic documentary photos like the Napalm Girl from the

Vietnam War and pictures of visible breastfeeding, reveals a disturbingly arbitrary approach to content moderation.

5

These eventsraise issues regarding platforms' liability,role, and regulation to a wholenew level. Platforms caninfluence

elections or change the course of events by silencing speech according to alleged infringements of their Terms of

Service. While certain harmful content posted online requires intervention, it has beenincreasingly openly questioned

whether platforms should alonebe the ones to decide what is available onlineand what is not.

6

This means that Fundamental Rights (FRs) protection is vital in any discussion regarding DSPs policy and their

regulation, be it by intellectual property laws or by other legislative or judicial intervention.

7

Traditionally, intermedi-

ary and platform liability regulations have been struggling to find a proper balance between competing rights that

might be affected by DSPs' activities and obligations.

8

Pristine approaches, reflected in the EU E-Commerce Direc-

tive (ECD), have established limited liability frameworks including exemptions for DSPs, which in turn provided

1

This terminology, used throughout the article, does not imply any different connotationthan traditional terms such as Information Society Service

Providers, Internet Service Providers or Online Service Providers. It is only meant to match better the scope of the Digital Services Act. The notion of

‘Digital Service Providers’includes at least three major categories of providers: access providers, hosting providers and search engines. However, more

categories and sub-categories can be identified, and their identification remains in constant flux due to fast-paced technological development. For a

taxonomical discussion of online intermediaries and service providers, see G. Dinwoodie, ‘Who Are Internet Intermediaries?’, in G. Frosio (ed), The Oxford

Handbook of Online Intermediary Liability (OUP 2020) 37–56.

2

See, e.g., N. Elkin-Koren and M. Perel, ‘Guarding the Guardians: Content Moderation by Online Intermediaries and the Rule of Law’, in Frosio (ed) (n 1)

669–678.

3

See, e.g., Oversight Board upholds former President Trump's suspension, finds Facebook failed to impose proper penalty (Oversight Board, May 2021)

<https://oversightboard.com/news/226612455899839-oversight-board-upholds-former-president-trump-s-suspension-finds-facebook-failed-to-impose-

proper-penalty>.

4

See, e.g., M. Zahn, ‘A timeline of Elon Musk's tumultuous Twitter acquisition attempt’(ABC News, 13 July 2022) <https://abcnews.go.com/Business/

timeline-elon-musks-tumultuous-twitter-acquisition-attempt/story?id=86611191>.

5

See M. Loi, Making sense of the Digital Services Act How to define platforms' systemic risks to democracy (Algorithmic Watch, August 2023), 8 <https://

algorithmwatch.org/en/wp-content/uploads/2023/08/AlgorithmWatch_Risk_Assessment-DSA.pdf>.

6

See, e.g., the Speech by President of the European Commission vonder Leyen at the European Parliament Plenary on the inauguration of the new

President of the United States and the current political situation, Brussels, 20 January 2021, <https://ec.europa.eu/commission/presscorner/detail/en/

speech_21_167> (noting that ‘No matter how right it may have been for Twitter to switch off Donald Trump's account five minutes after midnight, such

serious interference with freedom of expression should be based on laws and not on company rules. It should be based on decisions of parliaments and

politicians and not of Silicon Valley managers’).

7

On the increasing influence of human and fundamental rights on the resolution of intellectual property (IP) disputes, see C. Geiger, ‘Constitutionalising

Intellectual Property Law?, The Influence of Fundamental Rights on Intellectual Property in Europe’, (2006) 37(4) IIC 371; ‘Fundamental Rights as Common

Principles of European (and International) Intellectual Property Law’, in A. Ohly (ed.), Common Principles of European Intellectual Property Law (Mohr Siebeck

2012) 223; ‘Reconceptualizing the Constitutional Dimension of Intellectual Property - An Update’, in P. Torremans (ed.), Intellectual Property and Human

Rights (4

th

ed., Kluwer Law Int'l 2020) 117.

8

See, e.g., for a discussion of the nexus between liability and balancing exercise, C. Angelopoulos and S. Smeth, ‘Notice-and-Fair-Balance: How to Reach a

Compromise between Fundamental Rights in European Intermediary Liability’, (2017) 8(2) Journal of Media Law, 266–301 <https://www.ivir.nl/publicaties/

download/Notice_and_Fair_Balance.pdf>.

32 FROSIO and GEIGER

strong safeguards for users' fundamental rights. In order to protect the ideal of a free internet—and maximise incen-

tives for Internet entrepreneurs—policy makers decided initially to set up a legal framework that rejected any

approach that turned online intermediaries into some kind of Internet police.

9

Since then, governments and rightsholders haveattempted to enlist intermediaries to cleansethe internet of alleg-

edly infringing and illicit material.

10

Indeed, due to public enforcement authorities' lack of technical knowledge and

resources to addressan unprecedented challengein terms of global human communications, the temptationis great to

coactively outsource enforcement online to private parties. Private ordering—and the retraction of the public from

online enforcement—does however convey an amorphous notion of responsibility that incentivises intermediaries'

intervention to police themselvesallegedly infringing activities on the internet.It highlights unescapable tensions with

fundamentalrights—such as freedom of information, freedomof expression, freedom of businessor a fundamental right

to internetaccess—by limiting accessto information, causing chillingeffects, or curbing dueprocess.

11

In discussions of content moderation on the internet, the focus often tilts towards the role of platforms and pri-

vate actors, eclipsing the substantial and often insidious influence of States in shaping the digital landscape. While

the existing discourse has often framed online content moderation as a function of privatised governance by plat-

forms, it is also important to keep in mind that State-driven forces can compel platforms to operate in certain ways—

ostensibly to protect citizens, but sometimes to enforce state-centric worldviews and curtail freedom of expres-

sion.

12

For instance, countries with more centralised governance structures, like China, have enacted policies

enforcing pervasive control of online content and perpetuate state ideology.

13

In Europe, the recent trend has been

towards imposing enhanced responsibilities on online platforms and a tighter regulatory approach.

14

Contrastingly,

nations such as the United States have adopted a staunch “First Amendment absolutism”,

15

vigorously safeguarding

the interests of major tech conglomerates and digital platforms. While this approach aligns closely with domestic pri-

orities, it often overlooks the potential collateral damage to competing fundamental rightsthat may be compromised

by the unchecked presence of illicit content online. Interestingly, the approaches to intermediary liability regulation

in China and the U.S. could be considered as representing opposite ends of the policy spectrum. With recent devel-

opments like the Digital Services Act (DSA),

16

the EU embraces a compromise, upholding the existing liability

9

See, e.g., J. Boyle, Intellectual Property? Two Pasts and One Future, Information Influx International Conference, Amsterdam, 2–4 July 2014 <https://

www.youtube.com/watch?v=gFDA-G_VqHo>.

10

See, e.g., G. Frosio, ‘Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility’(2017) 25 Oxford JILIT.1–33.

11

In this context, while beyond the purview of our review, it's pertinent to note legislation that restricts online news dissemination or services that facilitate

links to news, as exemplified by art. 15 of the Directive 2019/790/EU of the European Parliament and of the Council of 17 April 2019 on copyright and

related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC [2019] OJ L 130/92 and the Canadian Online News Act, Bill

C-18 of 22 June 2023 (imposing a mandate that restricts individuals in Canada from viewing or disseminating news articles and multimedia content posted

by news outlets via platforms like Facebook and Instagram). See also C. Geiger, G. Frosio and O. Bulayenko, ‘The Introduction of a Neighbouring Right for

Press Publisher at EU Level: The Unneeded (and Unwanted) Reform’, (2017) 34(2) European Intellectual Property Review, 202–210 (emphasising how the

reform might lead to less news availability and re-centralisation of the market for news).

12

For further examples that could be relevant to this discussion, consult the AIDV Index. Notably, see Brazil on page 161, Singapore on pages 858–859,

and Thailand on page 965. The AIDV Index is accessible at: https://www.caidp.org/reports/aidv-2022.

13

See Internet Information Service Algorithmic Recommendation Management Provisions, Effective 1 March 2022 (translated by Rogier Creemers, Graham

Webster and Helen Toner), art. 1, <https://digichina.stanford.edu/work/translation-internet-information-service-algorithmic-recommendation-

management-provisions-effective-march-1-2022>.

14

See, e.g., European Commission Communication, ‘Tackling Illegal Content Online. Towards an enhanced responsibility of online platforms’COM(2017)

555 final, s. 6 (noting ‘the constantly rising influence of online platforms in society, which flows from their role as gatekeepers to content and information,

increases their responsibilities towards their users and society at large’). See also G. Frosio and M. Husovec, ‘Accountability and Responsibility of Online

Intermediaries’in G. Frosio, see n. 1, 613–630; G. Frosio, see n. 10, 1–33; M. Husovec, Injunctions against Intermediaries in the European Union: Accountable

but Not Liable? (CUP 2017).

15

See, e.g., Communication Decency Act, §230. See also, recently leaving intact immunity under CDA §230 in suits sought to hold Twitter and Google

liable for terror content, Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) and Gonzalez v. Google LLC, 598 U.S. 617 (2023).

16

See Regulation2022/2065/EU of the European Parliamentand of the Councilof 19 October 2022 on a Single Market for Digital Servicesand amending

Directive2000/31/EC (Digital Services Act),2022 OJ L 277/1 (hereafter “DSA”). The DSA has beenpublished in the Official Journal as of 27 October 2022

and cameinto force on 16 November 2022. The DSA will be directly applicableacross the EU and will apply to all in-scope serviceproviders by 17 February

2024,although VLOPs and VLOSEs are requiredto comply with the new rules by no later than1 September 2023. For full commentaryon the DSA, see

F. Hofmannand B. Raue(eds), Digital Services Act (Nomos 2023)(an English version is announced for early 2024); T. Kraul (ed),Das neue Recht der digitalen

Dienste(Nomos 2023); M. Husovec and I. Roche Laguna, Principlesof the Digital Services Act (Oxford UniversityPress, forthcoming 2023), with a short primer

of the bookand the DSA available at M. Husovec andI. Roche Laguna, ‘Digital Services Act:A Short Primer’(2022) SSRN Research Paper no. 4153796/22

<https://ssrn.com/abstract=4153796>.On spillover effect of the DSA for the rest of the world, see, D. Keller, ‘The EU's new Digital Services Actand the Rest

of the World’(Verfassungsblog,7 November 2022) <https://verfassungsblog.de/dsa-rest-of-world>.

FROSIO and GEIGER 33