Hate speech, disinformation, the dissemination of terrorist content, non-consensual pornography, online child abuse… The list of problems that online platforms and their users are faced with today is long and ever-growing. With a more than 20-year old e-Commerce Directive at its heart, the EU legal framework for online intermediary liability is currently being overhauled. New initiatives include the Digital Services Act and Digital Markets Act proposals. As recently as 29 April 2021, the EU passed the Terrorist-Content-Regulation. In the meantime, national legislation to combat illegal online content was passed in a number of EU Member States (Germany, France, and recently Austria).
As the debate on each of the aforementioned topics is still unfolding, it is all the more important to have a point of departure. The editors of the book collection Fundamental Rights Protection Online, Bilyana Petkova and Tuomas Ojanen, aim at providing such a starting point. The book sets out to offer an overview of some of the most important developments in this area, remaining at a more abstract level at first (Part I) before examining national approaches in Germany, France, Italy and the USA (Part II) and analysing attempts for a common European approach (in Part III). Lastly, the collection of essays considers aspects of international law (Part IV).
This short review focuses on the national plane laid out in Part II of Fundamental Rights Protection Online and how the legislative experiences described therein already shaped subsequent national legislation in another Member State.
Domestic Legislation on Online Content
Part II of Fundamental Rights Protection Online analyses the legislative measures adopted by Germany and France as well as Italian jurisprudence on ISP-liability. The fact that these chapters focus on European states is contrasted with a normative outlook on US content moderation, reconceptualised as a problem of consumer protection.
In his Chapter on Germany (’What is illegal offline is also illegal online’: the German Network Enforcement Act 2017, pp. 28-56), Thomas Wischmeyer discusses the conception, content and future implications of the NetzDG, while going into detail in identifying and addressing the main critique that was voiced to call into question the very existence of the act. He presents a concise overview on the debate regarding the compatibility of the German law with the e-Commerce Directive and the fundamental right to freedom of expression. Wischmeyer outlines concerns that the NetzDG would lead to over-blocking by platforms and the privatisation of justice, and proposes a right to publication, or at the very least a right to challenge removal decisions.
A similar legislative approach in France is analysed by Kamel Ajji (‘Protecting liberal democracy from artificial information: the French proposal’, pp. 57-83). His chapter first describes the political background that led the French legislator’s efforts to fight disinformation and introduces the notion of ‘artificial information’ as opposed to the colloquial ‘fake news’. Ajji defines the artificiality of information using three elements, (i) causal intention to deceive, (ii) arbitrariness, and (iii) concealment of information. By matching this definition to the scope of the then proposed bill, he goes on to extensively analyse its problematic nature. Lastly, Ajji puts forward concrete measures, the combination of which he sees as a potential solution to the problem of ‘artificial information’: an obligation to disclose identified deceiving content, the labelling of specific pieces of content as currently being ‘under judicial scrutiny’, and a whitelist of reliable sources, subject to verification procedures. Content posted by non-verified sources should be displayed as ‘opinion’ rather than ‘fact’.
Furthermore, in their chapter (‘Self-regulation of fundamental rights? The EU Code of Conduct on Hate Speech’, pp. 197-229) Teresa Quintel and Carsten Ulrich show how these examples may be understood as concrete procedural requirements in operationalisation of the e-Commerce Directive.
Latest Domestic Legislative Developments in the EU
The analysis of the NetzDG and the Loi Avia presented in the book is a timely harbinger for subsequent legislative initiatives in EU Member States. Such is the case with the most recent domestic measure in this area: the Austrian Communication Platforms Act (KoPl-G). This law is expressly built on ‘the foundation of experience of the German and French legislative initiatives’ (Erläut 49/ME 27. GP, 1). In large parts, it relies on provisions of the German NetzDG while also addressing problems identified by its public and academic scrutiny.
What remains problematic in the KoPl-G is a lack of liability incentive for removing content. Platforms risk incurring liability when failing to remove content in time, yet face hardly any liability for removing content. This incentive-structure favours over-blocking, which Wischmeyer calls ‘the most serious defect of the [NetzDG]’. Improving on this problem, the KoPl-G establishes an internal redress-mechanism, which as of June 2021, has also been implemented in the amended NetzDG. It gives users the possibility of challenging content removals and thus tackles the risk of over-blocking head-on. Nevertheless, since the review is decided on internally, this solution exacerbates the second major point of critique outlined by Wischmeyer: the privatisation of justice.
The main contribution of Fundamental Rights Online: The Future Regulation of Intermediaries is that it represents a broad overview of legal approaches to online content that can indeed serve as a canvas for the future regulation of intermediaries. This is exemplified by Austria picking up on the debate surrounding the NetzDG and the Loi Avia. Indeed, the editors themselves concede in their Introduction that rather than regulation, the future of dealing with online content is curation – a collaborative effort between public law regulation and private content moderation. The chapters on national law are useful both to legislators and their constituents. Of course, the risk, albeit not a new one, is that the national approaches analysed in Part II of the book can also serve as points of reference for dawning domestic legislation in less democratic systems than the ones examined.
David Gruber is a Research Assistant and PhD-Candidate at the University of Graz Faculty of Law, Austria.