Download This PaperEvaluation on the EU Legal Safeguards for Users of the Liability-Encumbered OCSSP in Light of CJEU and Strasbourg Case Laws
27 Pages Posted: 8 Feb 2023 Last revised: 12 Apr 2023
Date Written: February 5, 2023
Abstract
Pursuant to Art. 17 of Digital Single Market (DSM) Directive, online content sharing service providers (OCSSP) is encumbered with obligatory burden to prohibit the availability or uploads of copyrighted material. Nonetheless, a major concern like Poland’s request for annulment of Art. 17 DSM, has increasingly emerged about the adverse impacts on users’ rights by OCSSP in carrying out the ex-ante content moderation. As a consequence of the technical flaws, false filtering can lead to inefficient legal protection for uploaders, such as compromising freedom of expression. In this paper, the hurdles for users’ exercise of fundamental rights, inter alia under Arts. 8 and 10 of European Convention of Human Rights (ECHR) would be analyzed based on the OCSSP’s liability-exemption regime—notice-and-stay-down injunction, along with the associated Court of Justice of European Union (CJEU) case laws (SABAM v. Netlog, and Scarlet Extended). Art. 17 (7) and (9) DSM, relevant to the safeguard mechanism for users, are evaluated by virtue of the balancing test approach laid out by Strasbourg case laws on ECHR (e.g., Weber criteria, Big Brother, and so forth). Transpositions of Art. 17 DSM in member states such as German, Austrian, Swedish and Finnish counterparts, are comparatively assessed, out of similar considerations as noted above.
Keywords: OCSSP, Content Moderation, DSM Directive, Human Rights, Strasbourg Case Law, Copyright
JEL Classification: K10, K11, K13
Suggested Citation: Suggested Citation