The Death of ?No Monitoring Obligations': A Story of Untameable Monsters

Author:Giancarlo F. Frosio
The Death of ‘No Monitoring Obligations’
The Death of ‘No Monitoring Obligations’
A Story of Untameable Monsters
by Giancarlo F. Frosio*
© 2017 Giancarlo F. Frosio
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
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Recommended citation: Gian carlo F. Frosio, The Death of ‘No Monitoring Oblig ations’: A Story of Untameable Mons ters,
8 (2017) JIPITEC 199 para 1.
Keywords: Proactive monitoring obligations; filtering obligations; intermediaries; fundamental rights online
pean Commission, would like to introduce filtering
obligations for intermediaries in both copyright and
AVMS legislations. Meanwhile, online platforms have
already set up miscellaneous filtering schemes on a
voluntary basis. In this paper, I suggest that we are
witnessing the death of “no monitoring obligations,”
a well-marked trend in intermediary liability policy
that can be contextualized within the emergence of
a broader move towards private enforcement online
and intermediaries’ self-intervention. In addition, fil-
tering and monitoring will be dealt almost exclusively
through automatic infringement assessment sys-
tems. Due process and fundamental guarantees get
mauled by algorithmic enforcement, which might fi-
nally slay “no monitoring obligations” and fundamen-
tal rights online, together with the untameable mon-
Abstract: In imposing a strict liability regime
for alleged copyright infringement occurring on You-
Tube, Justice Salomão of the Brazilian Superior Tribu-
nal de Justiça stated that “if Google created an ‘un-
tameable monster,’ it should be the only one charged
with any disastrous consequences generated by the
lack of control of the users of its websites.” In order
to tame the monster, the Brazilian Superior Court
had to impose monitoring obligations on Youtube;
this was not an isolated case. Proactive monitoring
and filtering found their way into the legal system as
a privileged enforcement strategy through legisla-
tion, judicial decisions, and private ordering. In multi-
ple jurisdictions, recent case law has imposed proac-
tive monitoring obligations on intermediaries across
the entire spectrum of intermediary liability subject
matters. Legislative proposals have followed suit. As
part of its Digital Single Market Strategy, the Euro-
A. Introduction
In the next few pages, I will be telling you a story that
is in between a dark fairy tale and mystery ction.
This story is lled with monsters—untamable ones—
and its protagonist has been murdered or at least
might be in danger of sudden death. However, let
us start from the beginning as any good story is
supposed to start.
Once upon a time there was “no monitoring
obligation.” Traditionally, online service providers
have enjoyed an exemption to any general obligation
to monitor the information, which they transmit
or store or actively seek facts or circumstances
indicating illegal activity.1 Together with safe harbor
provisions that impose liability on hosting providers
according to knowledge-and-take-down,
the “no
* Senior Researcher and Lecturer, Center for International
Intellectual Property Studies (CEIPI), Universitè de
Strasbourg; Non-Resident Fellow, Stanford Law School,
Center for Internet and Society. The author can be reached
1 See eg Council Directive (EC) 2000/31 on certain legal
aspects of information society services, in particular
electronic commerce, in the Internal Market [2000] OJ (L
178) 1-16 [hereinafter eCommerce Directive] Art 15; The
Digital Millennium Copyright Act of 1998, 17 USC § 512(m)
(United States) [hereinafter DMCA].
2 See eg eCommerce Directive (n 1) Art 12-15; DMCA (n 1) §
Giancarlo F. Frosio
monitoring obligations” rule set up a negligence-
based intermediary liability system. Online hosting
providers may become liable only if they do not
take down allegedly infringing materials promptly
enough upon knowledge of their existence, usually
given by a notice from interested third-parties.3
Although imperfect because of considerable
chilling effects,4 a negligence-based intermediary
liability system has inherent built-in protections for
fundamental rights. The European Court of Justice
has conrmed multiple times—at least with regard
to copyright infringement—that there is no room
for proactive monitoring and ltering mechanisms
under EU law.
Again, the Joint Declaration of the
Three Special Rapporteurs on Freedom of Expression
calls against the imposition of duties to monitor
the legality of the activity taking place within the
intermediaries’ services.6
However, rumor has it that the principle of “no
monitoring obligations”—and the negligence-
based system it propels—might be in great danger,
if it has not been killed off already. A fundamental
tenet of online intermediaries’ governance has been
3 Please consider that there is no direct relation between
liability and exemptions, which function as an extra layer of
protection intended to harmonize at the EU level conditions
to limit intermediary liability.
4 See e.g. Wendy Seltzer, ‘Free Speech Unmoored in
Copyright’s Safe Harbor: Chilling Effects of the DMCA on
the First Amendment’ (2010) 24 Harv J L & Tech 171, 175–76;
Center For Democracy & Technology, Campaign Takedown
Troubles: How Meritless Copyright Claims Threaten Online
Political Speech 1-19 (September 2010). There is abundant
empirical evidence of “over-removal” by internet hosting
providers. See eg Althaf Marsoof, ‘Notice and Takedown:
A Copyright Perspective’ (2015) 5(2) Queen Mary J of Intell
Prop 183, 183-205; Daniel Seng, ‘The State of the Discordant
Union: An Empirical Analysis of DMCA Takedown Notices’
(2014) 18 Va J L & Tech 369; Jennifer Urban and Laura Quilter,
‘Efcient Process or ‘Chilling Effects’? Takedown Notices
Under Section 512 of the Digital Millennium Copyright Act’
(2006) 22 Santa Clara Comp and High Tech L J 621; Lumen
<> (formerly Chilling Effects—
archiving takedown notices to promote transparency and
facilitate research about the takedown ecology). However,
recent U.S. caselaw gave some breathing space to UGC
creators from bogus takedown notices in cases of blatant
misrepresentation of fair use defences by copyright holders.
See Stephanie Lenz v. Universal Music Corp, 801 F.3d 1126,
1131 (9th Cir 2015) (holding that “the statute requires
copyright holders to consider fair use before sending
takedown notications”).
5 See Case C-70/10 Scarlet Extended SA v. Société belge des
auteurs, compositeurs et éditeurs SCRL (SABAM) [2011]
ECLI:EU:C:2011:771 (re-stating the principles in favour of
access providers); C-360/10 Belgische Vereniging van Auteurs,
Componisten en Uitgevers CVBA (SABAM) v. Netlog NV [2012]
ECLI:EU:C:2012:85 (conrming the principle in favour of
hosting providers).
6 See Joint Declaration of the Three Special Rapporteurs for
Freedom of Expression (2011) 2.b. <
fom/78309?download =true>.
increasingly challenged.
Who killed—or is trying to
kill—“no monitoring obligations”? And why? The
predicament in which the principle of no proactive
monitoring nds itself is the result of miscellaneous
concomitant factors and spans all subject matters
relevant to intermediary liability online. In search
of the culprit, this paper will investigate recent case
law, law reform, and private ordering.8
B. Untameable Monsters, Internet
Threats and Value Gaps
As mentioned, this is a story of untameable monsters.
These monsters have recently been seen in Brazil,
apparently in the proximities of the Brazilian
Superior Tribunal de Justiça (STJ). In imposing a strict
liability regime for alleged copyright infringement
occurring on YouTube, Justice Luis Felipe Salomão
of the Brazilian STJ stated that “if Google created
an ‘untameable monster,’ it should be the only one
charged with any disastrous consequences generated
by the lack of control of the users of its websites.”9
As per Justice Salomão’s metaphor, the dangers for
“no monitoring obligations” might follow as reaction
to a fear for technological innovation that has posed
unprecedented challenges to semiotic governance.
By evoking the untamable monster, Justice Salomão
echoes a recurrent narrative in recent intermediary
liability—especially copyright—policy. This narrative
has focused on the “threat” posed by digitalisation
and internet distribution.
It has led to overreaching
expansion of online enforcement. The Court in Dafra
stressed the importance of imposing liability on
intermediaries, stating that “violations of privacy
of individuals and companies, summary trials and
7 See Giancarlo Frosio, ‘From Horizontal to Vertical: An
Intermediary Liability Earthquake in Europe’ (2017) 12
Oxford JIPLP (published online on 12 May) <https://doi.
org/10.1093/jiplp/jpx061> (discussing a move from a
negligence-based to a strict liability approach in recent
8 Please consider that this paper has chosen to give special
emphasis to the review of case law on point. Private
ordering and legislative proposals are described in lesser
detail, both for reasons of space and because they have
been the focus of other recent pieces from this author.
See Frosio (n 7) (discussing ltering monitoring reform
proposals); Giancarlo Frosio, ‘Reforming Intermediary
Liability in the Platform Economy: A European Digital
Single Market Strategy’ (2017a) 112 Northwestern U L Rev
19 (2017) (discussing reform proposals); Giancarlo Frosio,
‘Why Keep a Dog and Bark Yourself? From Intermediary
Liability to Responsibility’ (2017b) <https://papers.ssrn.
com/ abstract=2976023> (discussing private ordering).
9 Google Brazil v Dafra, Special Appeal No. 1306157/SP
(Superior Court of Justice, Fourth Panel, 24 March 2014)
10 See James Boyle, The Public Domain: Enclosing the
Commons of the Mind (Yale University Press 2008) 54-82.

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