Editorial: Intermediary Liability as a Human Rights Issue

AuthorMartin Husovec
Pages181-182
Martin Husovec
2017
181
3
Editorial
Intermediary Liability as a Human Rights Issue
by Martin Husovec*
© 2017 Martin Husovec
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Mar tin Husovec, Editorial: Int ermediary Liabilit y as a Human Rights Issue, 8 (2017) JIPITEC 181
para 1.
1
In early summer 2016, a number of scholars from
diverse backgrounds met in Tilburg to discuss issues
of intermediary liability and human rights.
1
After
a few passionate debates - as well as a round of
drinks - a general feeling arose that the social issues
at stake require a dedicated forum. To keep the
momentum, we decided to set up an informal group
- ‘Intermediary Liability and Human Rights’ - to kick-
off periodical meetings and, on the kind invitation
of Prof. Spindler, to launch a paper symposium with
JIPITEC. This dedicated volume presents the fruits
of this intellectual exercise. Its goal is to highlight
that design of intermediary liability rules and their
real-world effects can and also should be heavily
scrutinized from the human rights law point of
view. In this sense, Judge Spano’s recent article,2 in
which he argues that the existing ECtHR case-law
is best understood only as a starting point and of
limited precedential value, is a perfect invitation for
scholars in this area to join us.3
2
To borrow from the band the Scorpions, ‘wind
of change’ is in the air. Despite the fact that
intermediary liability rules have been around for
some time, the related debates seem to be increasing
in intensity. The selection of contributions in this
issue illustrates this very well. First of all, impatience
of policy makers results in different types of
* Assistant Professor at the Tilburg University (Tilburg
Institute for Law, Technology and Society & Tilburg Law
and Economics Center).
1 After the Tilburg meeting organized by me and Tilburg
Institute for Law, Technology and Society (TILT), the second
meeting took place in Amsterdam and was organized by
Tarlach McGonagle at the Institute for Information Law
(IViR), University of Amsterdam.
2 Robert Spano, ‘Intermediary Liability for Online User
Comments under the European Convention on Human
Rights’ (2017) Human Rights Law Review, p. 11-12.
3 Feel free to drop me an email.
‘ultimatums’, such as the Code of Conduct, which
are meant to incentivize a change without amending
the laws. Second, there are a number of new policy
proposals across the globe, which usually try to
legally impose more proactive measures and not just
wait for the rms to improve things on their own.
Third, the courts are becoming increasingly involved
in shaping how the environment should look like;
the case-law surrounding hyperlinks and website-
blocking are perhaps the most salient symbols of
this trend. And lastly, human rights law and its
community is awakening to the new ‘intermediated’
realities of the online world.
3
To name just a few recent initiatives and
developments. Within the last few years, the
European Court of Human Rights received more
than a dozen of new cases in the area.4 The
Council of Europe recently conducted a large scale
4 To mention just intermediary liability cases stricto
sensu: ECtHR, K.U. v. Finland (App. no. 2872/02);
ECtHR, Yildirim v. Turkey (App. Nr 3111/10);
ECtHR, Akdeniz v. Turkey (App. No 25165/94);
ECtHR, Cengiz and Others v. Turkey (App. no.
48226/10 and 14027/11); ECtHR, Del AS v. Estonia
(Application no. 64569/09) – two decisions;
ECtHR, Magyar Tartalomszolgáltatók Egyesülete
and Index.hu ZRT v. Hungary (Application no.
22947/13); ECtHR, Rolf Anders Daniel Pihl v.
Sweden (App. Nr. 74742/14); ECtHR, Payam Tamiz
v United Kingdom (App. no. 3877/14) and pending
cases of: Kharitonov v Russia (App no. 10795/14);
Grigoriy Nikolayevich Kablis v. Russia (App. no.
59663/17); OOO Flavus and others v. Russia (App.
No. 12468/15). The list of the related cases is
much broader, see - CoE, ‘Internet: case-law of
the European Court of Human Rights’, available at
echr.coe.int/Documents/Research_
report_internet_ENG.pdf>.

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