The Power of Positive Thinking: Intermediary Liability and the Effective Enjoyment of the Right to Freedom of Expression

• Author: Aleksandra Kuczerawy
• Pages: 226-237

2017

Aleksandra Kuczerawy

226

3

The Power of Positive Thinking

Intermediary Liability and the Effective Enjoyment of the

Right to Freedom of Expression

by Aleksandra Kuczerawy*

© 2017 Aleksandra Kuczerawy

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: Alek sandra Kuczerawy, The Power o f Positive Thinking: Intermedia ry Liability and the Ef fective

Enjoyment of the Right to Freedom of Exp ression, 8 (2017) JIPITEC 226 para 1.

Keywords: Intermediary liability; right to freedom of expression; theory of positive obligations; fundamental

rights; EU legislation; removal of online content; ECHR; CJEU

paper analyses whether the doctrines of positive ob-

ligations (under the European Convention on Human

Rights) and effective protection (under the Charter of

Fundamental Rights of the European Union) may re-

quire the States to take additional measures to pro-

tect the right to freedom of expression from interfer-

ence online. In particular, the paper analyses whether

the Charter may require the EU legislature to take ad-

ditional measures to ensure that the right to freedom

of expression can be effectively enjoyed online, for

example by introducing procedural safeguards in the

legal framework regarding removal of online content.

Abstract: The Internet intermediary liability

regime of Directive 2000/31/EC places hosting pro-

viders in the role of private gatekeepers. By providing

an incentive in the form of a liability exemption, the

EU legislature has ensured that hosting providers co-

operate in the policing of online content. The current

mechanism results in a situation where private enti-

ties are co-opted by the State to make decisions affect-

ing the fundamental right to freedom of expression.

According to the theory of positive obligations, States

not only have to refrain from interfering with funda-

mental human rights, but also actively protect them,

including in relations between private individuals. This

A. Introduction

1

Article 14 of the E-commerce Directive (2000/31)

contains a conditional liability exemption for hosting

providers.1 Under this provision, hosting service

providers can benet from a liability exemption

provided they: 1) do not have actual knowledge of

* Senior researcher and PhD candidate at the Centre for IT

and IP Law (CiTiP) at KU Leuven, Belgium.

1 Directive 2000/31/EC of 8 June 2000 on certain legal aspects

of information society services, in particular electronic

commerce, in the Internal Market (E-Commerce Directive),

OJ L 178, 17.07.2000, 1.

illegal activity or information and, as regards claims

for damages, are not aware of facts or circumstances

from which the illegal activity or information is

apparent; 2) upon obtaining such knowledge or

awareness, they act expeditiously to remove or to

disable access to the information.2

2

The provider of a hosting service can obtain

knowledge about the illegal character of hosted

content in a number of ways. For example, the

provider could nd such content through his own

activities or he could be notied about the situation

2 Article 14.1 of the E-Commerce Directive 2000/31/EC.